Opinion
December 11, 1924.
FORCIBLE ENTRY AND DETAINER: Judgment — Staying Execution. The execution of a judgment of removal in forcible entry and detainer in a court of record may be stayed, on appeal, by proper supersedeas bond.
Headnote 1. 26 C.J. p. 879 (1926 Anno.)
Appeal from Des Moines Municipal Court. — J.E. MERSHON, Judge.
Havner, Flick Powers, for appellants.
Reson S. Jones and Isador Robinson, for appellee.
The judgment appealed from was entered in the municipal court of the city of Des Moines in an action of forcible entry and detainer. The defendants, appellants herein, filed an application in this court for an order to stay all proceedings in the court below, pending the appeal. A stay order was issued by one of the judges, to vacate which a motion was filed by appellee, placed on the motion calendar, and submitted in regular court on motion day. The ground of the motion is that this court is without authority to stay execution in an action of forcible entry and detainer, and that the appeal is not in good faith, but for the purpose of delay only. We are not disposed to consider the latter ground.
Actions of forcible entry and detainer are summary in their character, and may be commenced in the district, municipal, and superior courts within the county, and in justice of the peace courts within the township, where the subject-matter of the action is situated. Chapter 230, Section 1, Acts of the Thirty-seventh General Assembly. Chapter 230 further provides that appeals may be taken from all judgments rendered in the justice court, to the district or superior court, as provided by law.
Section 4220 of the Code of 1897 provides:
"An appeal or writ of error, taken from the action of a justice of the peace in such action in the usual way, if the proper security is given, will suspend the execution for costs, and may, with the consent of the plaintiff, prevent a removal under execution, but not otherwise."
This provision of the statute relates only to appeals from judgments entered in justice of the peace courts. It in no wise restricts the right of appeal from a judgment entered in a court of record. The right of appeal from a judgment entered in the district court has not been questioned in this court, and has apparently been upheld. Herkimer v. Keeler, 109 Iowa 680; Denecke v. Miller Son, 142 Iowa 486.
Section 4100 of the Code of 1897 provides that:
"The Supreme Court has appellate jurisdiction over all judgments and decisions of all courts of record, except as otherwise provided by law."
There being no restrictions upon the right of appeal from courts of record in actions of this character, we know of no reason why the general rule for staying execution by filing a supersedeas bond, as allowed by Section 4128 of the Code of 1897, is not applicable to appeals in forcible entry and detainer cases. Unless the provisions of Section 4128 are applicable to appeals in such cases, or there is power in the court to stay proceedings pending the appeal, its appellate jurisdiction would be of little value to litigants. The inherent court has power to protect its appellate jurisdiction. The anomalous condition which this holding will create in actions prosecuted in a justice of the peace court is due wholly to the statutes quoted. This can easily, and should, be remedied by the legislature. Actions of forcible entry and detainer often, as in the case before us, involve a controversy over purely contractual rights; and there is no apparent reason why a different rule should be applied to leases than to other forms of contract. We are of the opinion that supersedeas will lie to prevent execution, upon appeal to the Supreme Court from a judgment in favor of the plaintiff in an action of forcible entry and detainer. A bond having already been filed in this court, the motion to vacate the writ will be — Overruled.