Wimmer v. State Ex Rel. Baxter , 138 Okla. 244 ( 1929 )

On the 28th day of December, 1928, the district court of Pottawatomie county issued a peremptory writ of mandamus against Neal Wimmer, who was acting mayor of the city of Shawnee, to issue his proclamation calling a special election in said city of Shawnee for the purpose of submitting to the voters therein certain proposed amendments to the charter of the city of Shawnee. It was further ordered that in the event of the adoption of said amendment to the charter of said city by the citizens thereof, the said Neal Wimmer, as mayor, forthwith proceed to issue his proclamation calling a special election in the city of Shawnee for the election of certain officials as provided in the city charter as amended. A motion for new trial was duly filed, and on January 21, 1929, the same was by the trial court overruled, and the appeal from the judgment and order in this cause was filed in this court March 30, 1929.

The defendants in error have filed herein their motion to dismiss the appeal on the grounds the question involved in this appeal has become moot for the reason the plaintiff in error has complied with the judgment and order of the court appealed from by calling the special elections provided for in said judgment and order, and submitted copies of the proclamation calling said elections as published in said city of Shawnee. The allegation in the motion to dismiss the appeal is that the special elections provided for in said order and judgment appealed from have been called is not denied by the plaintiff in error, and we therefore consider the same to be true. The question presented by this appeal has become moot, and when the question presented by appeal has become moot, the appeal will be dismissed. Goldsmith v. City of Ardmore, 136 Okla. 201,277 P. 230; Parker v. U.S. Smelter Co., 80 Okla. 129,194 P. 896.

Applying the rule announced in the above cited case to the condition of the record in this cause, the motion of the defendants in error to dismiss the appeal is sustained and the appeal is dismissed.