
    Geo. M. Fish, Jr., vs. James Toner.
    March 7, 1889.
    Unlawful Detainer — Dismissal on Appeal — Restitution. — Upon proceedings in justice court, under the statute relating to the unlawful detainer of lands, the plaintiff recovered judgment and the possession of the premises. The defendant having appealed to the district court, the action was dismissed, upon motion of the plaintiff. Held, that in the judgment of dismissal it was proper to award restitution of possession to the defendant.
    Appeal by plaintiff from a judgment of the district court for Traverse county, and from an order by G. L. Brown, J., denying his motion to modify the judgment.
    
      Cliff á Crawford and J. G. Grace, for appellant.
    
      J. W. Reynolds, for respondent.
   Dickinson, J.

This proceeding was instituted in justice court under Gen. St. 1878, c. 84, for an alleged unlawful entry and detainer of real property. In that court, .judgment of restitution in favor of the plaintiff was rendered, and carried into execution. The defendant appealed to the district court upon questions of law and fact. The cause coming on to be heard in that court, the plaintiff moved that the action be dismissed. Judgment was entered upon such motion, dismissing the action, and awarding restitution of the premises to the defendant. The plaintiff, having appealed from that judgment, and from an order denying a modification of it by striking out that part of the judgment awarding restitution, now claims that that part of the judgment was unauthorized.

The judgment was right. This proceeding, pursuant to the statute, was designed for the purpose of recovering the possession of real estate by judicial means. The plaintiff recovered possession from the defendant only through the judgment of the justice’s court. Upon the cause being appealed to the district court, the cause became lis pendens in that court. The plaintiff, who was the respondent in that court, should not be heard to ask and obtain the dismissal of his action, and at the same time retain the property which he had acquired ■only by means of the judgment, upon which alone, so far as appears, his right of possession rested. But the result would be the same whether the action was dismissed upon the motion of the plaintiff, or for any other sufficient cause. This was the same action in which the judgment of restitution had been rendered. Upon the dismissal of the action the judgment could no longer stand, and the,property, which had been delivered to the plaintiff only by force of the judgment, should be restored.

Judgment affirmed;  