Quick v. Paregol

This appeal involves the right of a tenant to restitution of real property after the landlord had gained possession under a judgment, pending appeal from that judgment which was subsequently reversed and a new trial ordered. Instead of proceeding with the new trial the landlord took a voluntary nonsuit, with the consent of the tenant. The tenant thereafter moved to set the non-suit aside and for restoration of the property to him. The trial court refused to set aside the non-suit and also refused restitution and from such refusal the tenant prosecutes this appeal. We have concluded that the trial court acted erroneously. The action involves two adjoining houses in the southwestern section of the city. They were originally rented on a month to month basis by the tenant, appellant here, from a predecessor in interest of the present landlord under written agreements providing that the premises would be used only as dwellings and that the tenant would not sublet or take in roomers, lodgers or boarders without the written consent of the landlord. After the purchase of the properties by the present landlord, she filed suits for possession in the Landlord and Tenant Branch of the Municipal Court alleging that she was entitled to possession under the District of Columbia Emergency Rent Act 1 for the reason that the tenant had violated the terms of the leases by conducting rooming houses in the premises. The trial court directed verdicts for the landlord. On appeal by the tenant we held that the trial court had erred in refusing to admit evidence tending to show that the covenant of the leases against subletting and against taking in roomers had been waived by the original lessor and that the present landlord was bound by such waiver. We therefore reversed the judgment of the trial court and ordered a new trial. 2 In concluding our opinion, we said: 'Appellee [the landlord] contends that these cases are moot because the tenant gave no supersedeas bond and because the tenant voluntarily surrendered possession of one or both of the properties. Failure to furnish a supersedeas bond does not waive the right of appeal. Dowling v. Buckley, 27 App.D.C. 205; Sechrist v. Bryant, 52 App.D.C. 286, 286 F. 456. A voluntary surrender of possession would make the case moot. Price v. Wilson, D.C.Mun.App., 32 A.2d 109. Cf. Lalekos v. Manset, D.C.Mun.App., 47 A.2d 617. However, appellant denies any voluntary surrender and we cannot determine this question of fact. It must be left to determination by the trial court on the new trial.' After new trials had been ordered by the trial court in accordance with our mandate and after one or more continuances, the cases were calendared for trial by the tenant, whereupon the landlord filed a motion for nonsuits on the ground that since the filing of the original complaints she had obtained possession of the premises sought, and had remodeled and leased them to other tenants. The tenant objected to the grounds for the nonsuits but consented to their being taken. The trial court allowed the nonsuits to be taken, 3 ruling however that it was not passing upon the manner in which the landlord had regained possession. In allowing the dismissals the trial court stated that it was doing so without any waiver of the rights of the parties in the matter.