dissent">

On Application for Rehearing.

STRAUP, J.

A petition for rehearing is filed, chiefly on the ground that we did not dispose of the respondents’ motion to dismiss the appeal. Not anything in the opinion is said con-cering such a motion, and it also is true, as is contended, that we did not consider nor pass on such a question. The reason of it is that, while a motion to dismiss was on file, our attention was not called to it. The motion is not contained nor is there any reference made to it in the abstract; nor is there any reference made to it in the briefs of counsel. However, since the claim is made that the matter is jurisdictional, we now look at it.

Our statute (Comp. Laws Utah, 1917, § 7326) provides that from a judgment of forcible entry and unlawful detainer an appeal must, be taken within 10 days from rendition of the judgment. The appeal was not taken within such time, and hence the motion to dismiss it.

The plaintiff commenced the action in the city court along the last of July or the first of August, 1924, to recover from the defendants for rents due and unpaid and for restitution of the premises. The defendants appeared in the action and *25 on August 4th filed a demurrer. Thereafter an amended complaint was filed and an answer, but before the amended complaint and answer were filed, the defendants, on August 15 or 16, 1924, vacated the premises and surrendered the possession of them to plaintiff. So when the case was tried in the city court in December, 1924, the only issue tried was the amount of rent due and unpaid. That very clearly is made to appear by the findings and conclusions made by the city court and the judgment therein rendered. The judgment of that court was that the plaintiff was entitled to recover from the defendants the sum of $157.50 and interest, the amount of rent which the court found due and unpaid, together with costs taxed at $38.70. That judgment was rendered December 23, 1924, and notice thereof given the same day, and was entered December 24, 1924. From that judgment the defendants appealed to the district court. It is very clear that the judgment rendered in the city court was merely a money judgment. The undertaking on appeal, both as to costs and a stay of proceedings, was in the usual form of an appeal from a money judgment. The case, as tried in the district court, involved, as is clearly shown by the findings and conclusions therein made, only the amount of rent due and unpaid. And the judgment, as rendered by the district court, was merely a money judgment that the plaintiff recover from the defendants the sum of $44.50, interest and costs, and nothing else. It is from that judgment that this appeal is prosecuted. Because of the surrender of the premises ‘by the defendants to the plaintiff before the trial of the case even in the city court, the question of restitution no longer remained an issue, and no such issue was tried or determined in either the city court or in the district court. Hence, in view of our holding in the case of Dunbar v. Hansen (Utah) 250 P. 982, and the appeal here being merely from a money judgment, the forcible entry and unlawful detainer statute requiring an appeal within 10 days from the rendition of the judgment is not applicable, but the appeal is controlled by the general *26 appeal statute requiring an appeal to be taken within 6 months from the entry of judgment. The appeal was taken within that time. The petition for rehearing is therefore denied. It is so ordered.

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