State Ex Rel. DeAtley v. Alexander , 77 Okla. 87 ( 1920 )

The plaintiff in error herein filed his action in the district court of Canadian county against Ferol Alexander, corporation clerk of the city of El Reno, Oklahoma, praying for a peremptory writ of mandamus to compel the said Ferol Alexander to issue proper warrant for the payment to plaintiff in error for alleged services rendered the city of El Reno as policeman. The district court issued the alternative writ, but upon return and hearing entered an order vacating the alternative writ and refused to issue the peremptory writ. It is to review such action that plaintiff in error has appealed to this court.

Subsequent to the filing of the appeal herein, defendant in error has filed a motion to dismiss the appeal, on the ground that she is no longer corporation clerk of the city of El Reno, nor connected with the office in any way, and alleges that on the 1st day of August, 1919, one Ethel Dowell was appointed to the office and assumed the duties of city or corporation clerk, by virtue of which the questions involved in the appeal have become moot, abstract, and hypothetical. In response to the motion to dismiss plaintiff in error has filed a motion to substitute the present city or corporation clerk of said city of El Reno as defendant in error.

Upon the authority of Crigler, County Clerk, v. Nichols,51 Okla. 707, 152 P. 343, the motion to substitute must be denied, and the motion to dismiss sustained. In that case it was held, on the authority of Richardson v. McChesney,218 U.S. 487, 31 Sup. Ct. 43, 54 L. Ed. 1121, that an action such as the one in the case at bar is against the party personally whom it is sought to compel to issue the warrant, and that on the termination of such party's official authority his successor cannot be substituted.

It appearing that the defendant in error, Ferol Alexander, has retired from office, and that no actual relief could be granted in this case other than to determine liability for costs, the questions presented by the appeal have become moot.

The appeal is, therefore, dismissed.

OWEN, C. J., and PITCHFORD, JOHNSON, McNEILL, and HIGGINS, JJ., concur.