AREND, Associate Justice.
The basic problem here is whether the courts of Alaska may by interlocutory order or provisional remedy require the defendants in an ejectment action to pay into the registry of the court, pending judgment, a reasonable monthly rental for their use of the property in litigation. We say, no. Before elaborating on our answer, however, we need to consider first a procedural question involved, and that is whether such an order is an appealable order. A brief summary of the facts of the case will simplify our treatment of the problems presented.
On October 10, 1958, the plaintiffs-appellees started an action in ejectment in the District Court for the District (Territory)
In their answer the defendants deny plaintiffs' allegations as to ownership, ouster, damages and rent. Then, by way of affirmative defense, defendants allege that the tax deed, upon which the title of the plaintiffs is predicated, was invalid because the property had been subjected to a double assessment. They also claim that the tax sale was not held in the manner required by law.
Approximately four months after the commencement of the action, the plaintiffs filed their motion for the payment of rent by the defendants into the registry of the court. A formal order granting the motion was entered by the court on May 25, 1959. The defendants then moved to set aside the rent order, which was denied by order of the court on August 5, 1959. The defendants appealed from the orders so entered.
Under the rule making power vested in it by the State Constitution,
The order to pay rent in the instant case was not a final order or judgment. Appellants themselves inform this court in their brief that they are appealing from "an interlocutory order or provisional remedy." In the case of an interlocutory order some further steps are required to be taken to enable the court to adjudicate and settle the rights of the parties, while a final judgment determines the rights of the parties without further adjudication on the merits.
However, we do not propose to send the appellants hence without relief. As this court pointed out in the case of City of Fairbanks v. Schaible,
True, the appellants should have filed with us a petition for review instead of proceeding by the appeal route. Their mistake is understandable, inasmuch as the Supreme Court Rules were not adopted and put into effect until about one month before the appeal was taken. This did not allow very much time for counsel to become thoroughly familiar with the rules. Prior to the adoption of our rules, only final judgments of the District Courts of Alaska were reviewable in the appellate court.
Under Supreme Court Rule 40(d)
In the trial court the appellees as plaintiffs sought to support their motion for the order in question by a provision of Section 16-1-128, A.C.L.A. 1949,
Since the redemption period had expired and the appellees had acquired a tax deed to the premises, they properly brought their action in ejectment. Section 56-1-1, A.C.L.A. 1949, provides in part that:
The rule was established long ago in Alaska that the damages mentioned in this section may be measured by the actual worth of the property to the plaintiff during the term of his ouster, that is, its rental value.
The only case we can find at all touching upon the subject is an early Pennsylvania decision in which it was held that a court cannot require, pending an action of ejectment, security from defendant for mesne profits, or restrain defendant from collecting rents.
We cannot determine from the record whether the trial court actually weighed its authority to grant the rent order. The only reason it gave for denying the motion to set aside the order was that the appellants were guilty of laches for failure to oppose the original motion or to give any reason for their failure to so do. Since it had no legal authority to grant the rent order here on review, we find that the District Court so far departed from the accepted and usual course of judicial proceedings as to call for this court's power of supervision and review.
Review is granted. The order of May 25, 1959, granting appellees' motion to pay rent money is reversed
"At any time this court may entertain a motion to dismiss an appeal or petition for failure to prosecute the same or for failure to comply with these rules."
"* * * That from the date of sale and issuance of certificate of purchase and until redeemed, the holder of such certificate shall be entitled to the possession of the tract sold, together with the rents, issues and profits thereof, and any person who after ten days' notice and demand of possession thereof by the holder of such certificate of purchase who withholds the possession of such tract, shall be deemed guilty of unlawful detainer."
This statute was repealed in 1957 (Section 64, Chapter 174, S.L.A. 1957); but that is immaterial here, because the statute does not apply to the facts and circumstances of this case as we point out in our opinion.