First National Bank v. Struthers ( 1949 )

Mr. Justice Holland

delivered the opinion of the court.

As presented by the record, briefs and oral argument, we are asked to construe the terms of a written business lease entered into between the parties hereto on April 30, 1945 wherein plaintiff in error is the lessor.

The terms of the lease with which we concern ourselves are that it was for a two-year period beginning April 30, 1945 and ending April 30, 1947. It contained the following provision: “It is mutually agreed that in case either party wishes to vacate, or to be vacated, these premises upon the expiration of this lease, that sixty days written notice shall be given the other party.”

On March 14, 1947, plaintiff in error, the lessor, gave defendant in error, the lessee, the following written notice: “We hereby give you notice to vacate the premises at #16 E. Pikes Peak Avenue, Colorado Springs, Colorado on or before May 30, 1947. You will note we are giving you more than the sixty (60) day notice as required by the lease.”

The lessee held over beyond the end of the term fixed in the lease and on the 28th day of May, 1947, filed this action in the district court seeking specific performance of the covenants of the lease hereinabove set out, and contended that the failure of the lessor to give written notice sixty days prior to the expiration of the lease, together with the acceptance of rent for the month of May, 1947, operated to continue said lease in force and effect for a new term expiring April 30,1949. By answer and counterclaim, the renewal was denied.

Upon trial to the court, plaintiff, the lessee, prevailed, and judgment was entered permitting him to continue in the occupancy and peaceful possession of the premises until April 30, 1949. The judgment was entered March 10, 1948; the record lodged in this court January 21, 1949; came to issue April 7, 1949, and upon request, oral arguments were heard November 16, 1949.

It is sufficient to note the fact of which we take judicial'notice, that the object of the suit can no longer be attained. The question involved-is peculiar only to this particular lease and is not of general interest. It is obvious that any adjudication which we might now make would be ineffectual, since the term for which the lessee contended, and which the lessor opposed, has already expired, and was about to expire on April 7, 1949 when the case came to issue upon the filing of the reply brief of plaintiff in error.

The duty of this court, as well as of every other judicial tribunal, is to determine actual and real controversies by a judgment that can be put into effect and not to give opinions upon questions that are moot.

In pursuance of our determination of the stated facts, it is ordered that the writ of error be dismissed without prejudice to the rights of either party as they now exist.