
    Cahn v. Wright.
    [66 South. 782.]
    Appeal and Error. Dismissal. Issues.
    
    Where plaintiff, in an action for unlawful entry and detainer, sought to recover, in addition to the possession of the land, compensation for the use and occupation thereof, an appeal by plaintiff from a judgment for the defendant in the lower court, will not be dismissed in the supreme court on motion of the defendant after surrendering possession.
    Appeal from the circuit court of Leflore county.
    Hon. Monroe McCltjrg, Judge.
    Suit by Mrs. Eosa M. Cahn against Samuel Wright. Prom a judgment for defendant, plaintiff appeals.
    The facts are fully stated in the opinion of the court.
    
      Alfred, Stoner & Gardner and McBee & Gardner, for appellant.
    
      Gwin S Mounger, 'for appellee.
   Smith, C. J.,

delivered the opinion of the court.

This was a suit instituted in unlawful entry and detainer court by appellant in order to recover from appellee the possession of certain land. On the appeal from that court to the court below, a judgment was rendered in favor of the defendant, appellee here. After-wards, and before this appeal was taken, appellee surrendered possession of the land in controveisy to appellant.' The cause now comes on to be heard on the motion by appellee to dismiss the appeal for the reason that:

“The possession of the property in controversy has been delivered to appellant, and appellee no longer claims any interest in or title to same, making the cause now before the court merely a moot case or abstract question of law. ’ ’

Assuming that the question here sought to be litigated can be raised by motion to dismiss, the motion must nevertheless be overruled, for the reason that possession of the land was not the sole question litigated in the court below. Appellant, as appears from instructions granted and refused, sought to recover, in addition to -the possession of the land, compensation for the use and occupation thereof, as she had the right to do under section '5049 of the Code.

Motion overruled.  