Petersen v. Strawn

Appellant cites Cavanagh v. Iowa Beer Co., 136 Iowa 236, to support his contention that the provision of the lease was not a condition precedent. Appellee cites Fink v. Chambers, 95 Mich. 508, Montgomery v. Hunt, 93 Ga. 438, Hickman v. Rayl, 55 Ind. 551, and Todd v. State Bank, 182 Iowa 276 (3 A. L. R. 971), to sustain his contrary contention that the clause is a condition precedent. We deem it unnecessary to discuss that question, except to say that, in view pf what was done, it should have been considered and should now be considered as an abatement, rather than in bar, in so far as it relates to the rent and measurement of the land. It is quite clear that appellant has no right to further prosecute the appeal. He may not have two suits pending in the courts for the same thing at the same time. The proceedings taken by him after the first-trial, from which this appeal is taken, are in the nature of an abatement, or an abandonment of his right to appeal. Furthermore, he has acquiesced, not only in the judgment rendered in-the other case, but in the very ruling of the trial court of which *529he now complains, since in his secopd action he alleges that he has measured the land, as provided in the lease, and asks judgment for the number of acres shown by the measurement. The appeal is — Dismissed.