Jensen v. Nolte

• Decision Date: 07 April 1942
• Docket Number: No. 45877.,45877.
• Citation: 231 Iowa 1103,3 N.W.2d 140
• Parties: JENSEN v. NOLTE et al.
• Court: Iowa Supreme Court

231 Iowa 1103

3 N.W.2d 140

JENSEN

v.NOLTE et al.

No. 45877.

Supreme Court of Iowa.

April 7, 1942.

Appeal from District Court, Bremer County; M. H. Kepler, Judge.

One of defendants demurred to plaintiff's petition. The court sustained the demurrer. The plaintiff did not elect to stand on his petition or have judgment entered against him. It is held that the Supreme Court does not have jurisdiction to consider this appeal.

Appeal dismissed.

R. Eldon Laird, of Waverly, for appellant.

Sweet & Sager, of Waverly, for appellees.

WENNERSTRUM, Justice.

The appeal in this case has developed by reason of an action at law brought by a lessee, who claims to be entitled to the possession of certain real estate and against the lessor and a second lessee in possession under a written lease, and for damages. Judgment is also asked, in the alternative, for the reasonable rental value of the property for the period covered by appellant's lease. The appellee, the subsequent lessee in possession, demurred to plaintiff's petition, which demurrer was sustained. Exceptions were noted by the court to its ruling. The plaintiff has appealed.

The record does not disclose any election on the part of the appellant to stand on his petition, or to suffer final judgment to be entered against him. The question, therefore, that must be decided by us is as to whether or not we have any juris liction to pass upon this appeal. If a motion to dismiss had been filed by the appellee in this court, it would have been obligatory on us to dismiss the appeal because of the fact that no final judgment had been entered against the appellant and he did not elect to stand upon his petition. Under such a situation an attempted appeal is without avail. Hayes v. Selzer, 227 Iowa 693, 696,298 N.W. 25;Hawthorne v. Andrew, 208 Iowa 1364, 1366, 227 N.W. 402, 403, and cases therein cited; Cox v. City of Des Moines, 231 Iowa -, 2 N.W.2d 261. See also Code section 12823 of the 1939 Code, par. 3, Cowen v. Boone, 48 Iowa 350, Bradley v. Miller, 100 Iowa 169, 69 N.W. 426,Home Savings Bank v. Kelley, 205 Iowa 514, 218 N.W. 288,Devoe v. Dusey, 205 Iowa 1262, 217 N.W. 625,Porterfield v. Grand Lodge, 212 Iowa 1181, 236 N.W. 381.

Defendant-appellee has not submitted a motion to dismiss but inasmuch as the question is jurisdictional we hold that this court on its own motion can and should enter an order of dismissal of this appeal because there has been no judgment or order from which an appeal could be taken. In Green v. Ronen, 59 Iowa 83, 84, 12 N.W. 765, 766, we said: “* * * We can entertain an appeal only when a judgment has been rendered from which an appeal may be taken, and the judgment must be affirmatively shown. And we will dismiss the case, even though the parties fail to present the objection to us; for, being jurisdictional in its nature, the parties cannot waive it by silence or by consent. This court cannot try a case wherein no judgment has been entered in the court below. These points were ruled by this court in Pittman v. Pittman et al. [[, 2 N.W. 536. * * *” For a discussion of a similar question see, In the Matter of the Estate of Mary Alice Robinson, Deceased (Meeker v. Moore, Administrator), Iowa, 3 N.W.2d 158, filed concurrently with this opinion.

A statement to the same effect is found in the case of City Council of Marion v. National Loan & Investment Co., 122 Iowa 629, 634, 98 N.W. 488, 490, where this court said: “* * * As in the case of an appeal to this court, we can proceed only when it appears as an affirmative fact, established by matter of record, that a...