Moore v. City of Perry , 110 Okla. 8 ( 1925 )

At the threshold of this case the court is confronted by the question whether on the merits of the case there is any question remaining for decision other than an abstract and moot question of law disconnected with any relief or remedy. This question is raised by a motion of defendants to dismiss.

This action was commenced solely for injunctive relief. No other judgment was sought than that of a permanent injunction. Upon the filing of plaintiffs' petition, and in the absence of the district judge from the county, the county judge granted a temporary injunction on October 10, 1923. On trial in district court beginning November 5, 1923, a decree was entered denying a permanent injunction, and an order was entered dissolving the temporary injunction theretofore granted by the county judge, to which action exception was reserved. No appeal was prosecuted from this order in the manner and within the time permitted by Comp. Stat. 1921, section 809, which reads:

"When an order, discharging or modifying an attachment or a temporary injunction, shall be made in any case, and the party who obtained such attachment or injunction shall except to such order, for the purpose of having the same reviewed in the Supreme Court upon petition in error, the court or judge granting said order shall, upon application of the proper party, fix the time, not exceeding thirty days from the discharge or modification of said attachment or injunction, within which such petition in error shall be filed; and during such time the execution of said order shall be suspended, and until the decision of the case upon the petition in error, if the same shall be filed; and the undertaking, given upon the allowance of the attachment, shall be and remain in force until the order of discharge shall take effect. If such petition in error shall not be filed within the time limited, the order of discharge shall become operative and be carried into effect; and the certificate of the clerk of the Supreme Court that such petition is or is not filed, shall be evidence thereof."

Motion for new trial was timely filed, duly presented January 19, 1924, and overruled February 4, 1924. Supersedeas bond in the sum of $2,000 was filed and approved, and the petition in error was filed in this court February 27, 1924. As shown by an affidavit of the city clerk incorporated in the motion to dismiss, the paving work sought to be enjoined was completed according to plans and specifications, and was, on June 19, 1924, duly approved and accepted by the mayor and city council.

In its order overruling the motion for new trial the district court attempted to revive and continue in force the temporary injunction granted by the county judge, and which had been dissolved November 6, 1923, without appeal. This part of the order of February 4, 1924, was ineffectual for the reason that the temporary injunction had spent its force at the expiration of 30 days from November 6, 1923, no appeal having been taken. The trial court was without jurisdiction to extend the time beyond that period. Bales-Fulkerson Co. v. Freeman,45 Okla. 798, 146 P. 1082; Kennedy Mercantile Co. v. Dobson et al.,40 Okla. 306, 137 P. 147: Reynolds v. Phipps et al.,31 Okla. 788, 123 P. 1125. But it is urged by plaintiffs that this order of the district court, notwithstanding its clear language, was not intended to revive the spent order of the county judge, but was an order of the district court itself granting a temporary injunction pending appeal. This contention is untenable for the reason that the district court after trial on the merits had determined that plaintiffs were not entitled to injunctive relief, and on motion for new trial directed to the merits of the case, adhered to its original decision and denied the motion. Since the order attempting to revive the spent order of the county judge was ineffectual, the attempt to supersede the order of dissolution made after the expiration of 30 days is likewise ineffectual.

This leaves for consideration only the proceeding in error on the merits of the case, and since it appears that the acts sought to be enjoined have been completely performed and the paving used by the public for nearly a year, it is apparent that a decision here on the merits would merely determine an abstract and moot question of law wholly disconnected with any relief or remedy. Under such circumstances it is thoroughly well settled by decisions of this court that such questions will not be decided here. Jones v. East, 33 Okla. 604,127 P. 261; McCullough et al. v. Gilcrease, 40 Okla. 741, 141 P. 5; Parrish v. School Dist. No. 19, 68 Okla. 42, 171 P. 461; George et al. v. Robinson et al., 47 Okla. 623, 149 P. 1087: Oklahoma Pet. Co. v. Minnehoma Oil Co., 80 Okla. 245,195 P. 759.

For the reasons herein stated, this cause should be dismissed.

By the Court: It is so ordered.