Sagarese v. Holland , 14 N.J. Misc. 652 ( 1936 )

Per Curiam;.

By this proceeding relator seeks a peremptory writ of mandamus to compel the Common Pleas judge of Morris county to approve a bond tendered by him and to permit him to qualify as justice of the peace. An alternative writ was heretofore allowed and a question of fact was raised which was sent to the Circuit for trial. At the trial the Circuit Court judge directed that judgment be entered in favor of the respondents and against the relator. Upon appeal to the Court of Errors and Appeals, this judgment was set aside upon the ground that the sole function of the Circuit Court was to settle the facts in dispute and that the application of the law was in the province of the Supreme Court. See Sagarese v. Holland, 116 N. J. L. 137; 183 Atl. Rep. 195. Upon the remanding of the record, the Circuit Court, upon application of the relator, signed an amended postea reciting that there being no dispute in the testimony upon the alleged question of fact, the court directed the jury to find as a fact that the Common Pleas judge had refused to approve the bond because the relator declined to take affidavit that he had not been convicted of a misdemeanor or higher crime, as required by chapter 131, Pamph. L. 1931; N. J. Stat. Annual 1931, § 106-11. Upon this amended postea, relator now asks a peremptory writ.

Passing the question of the propriety of the procedure adopted, we deem it sufficient to say that the question has now become moot, due to the fact that the five-year term for which relator was elected justice of the peace expired before the submission of this ease to this court. He was elected in November, 1930. Courts will not determine moot questions. Funk & Wagnalls Co. v. Stamm, 85 N. J. L. 301; 88 Atl. Rep. 1050; In re Braunstein, 105 N. J. Eq. 682; 149 Atl. Rep. 349. Cases originally presenting a real controversy may become moot pending determination. 1 C. J. Secundum 1017. Obviously, a judgment in his favor would avail relator nothing. He seeks to occupy the office to which ho was elected, but the term has expired. No matter of public interest is involved. The question presented is, therefore, moot and will not be determined.

The application will be denied.