This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Andrew Hybben,


Nico A. Constantine,


Filed November 26, 2002

Appeal dismissed

Stoneburner, Judge


Ramsey County District Court

File No. C0023680


Andrew Hybben, 3307 Churchill, Shoreview, MN 55126 (pro se respondent)


Daniel S. Le, Southern Minnesota Regional Legal Service, 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N



On appeal from a writ of recovery of premises, appellant Nico A. Constantine argues that his due-process rights were violated when the district court denied him a trial because he failed to deposit unpaid rent plus costs with the court in a timely manner.  Because appellant voluntarily relinquished the premises prior to execution of the writ of restitution, we dismiss the appeal as moot.



Respondent Andrew Hybben brought an eviction action against appellant Nico A. Constantine for failure to pay rent.  At the initial appearance, appellant asserted that he had only paid a portion of the rent because he had to pay for the removal of items that respondent had failed to remove from a garage.  The district court set the matter for trial and ordered appellant to deposit the balance of the rent plus late fees and costs, a total of $632, with the court by 3:00 p.m. on the day of the initial appearance.  Appellant did not comply with the order, which required deposit of cash, a cashier’s check, or a money order, until the next day.  The district court denied appellant’s request for trial based on failure to make the required deposit timely, issued the writ of recovery to respondent and had the deposit returned to appellant.  Appellant filed a notice of appeal.  At the hearing to set a supersedeas bond and stay the writ pending appeal, appellant voluntarily agreed to vacate the premises the same day, making a stay or a bond unnecessary.

We have previously held that when a tenant who appeals from a judgment for restitution of premises where no supersedeas bond has been posted or rent paid into court, and where the tenant voluntarily relinquishes the premises prior to execution of the writ of restitution, the appeal is moot.  Lanthier v. Michelson, 394 N.W.2d 245 (Minn. App. 1986), review denied (Minn. Nov. 26, 1986).  Appellant argues that his case is not moot because he wants record of the eviction expunged pursuant to Minn. Stat. § 484.014, subd. 2 (1999).  We find appellant’s argument without merit.  This is not an appeal from a denial of a petition to expunge the record; it is an appeal from a judgment of restitution.  Appellant could have preserved his right to appeal by posting the required supersedeas bond to stay execution of the writ pending appeal.  He chose to voluntarily relinquish possession.  An eviction action for nonpayment of rent merely determines the right to present possessionDahlberg v. Young, 231 Minn. 60, 68,42 N.W.2d 570, 576 (1950) (construing predecessor unlawful-detainer statute).  Because no justiciable controversy remains, the case is moot, and we need not reach appellant’s arguments.

Appeal dismissed.