Duncan v. Sims , 1954 Okla. LEXIS 704 ( 1954 )

277 P.2d 145 (1954)

C.M. DUNCAN, Plaintiff in Error,
v.
Iva SIMS and Patsy Trammell, Defendants in Error.

No. 35877.

Supreme Court of Oklahoma.

November 23, 1954.

Brown, Brown & Brown, McAlester, for plaintiff in error.

Hill & Nix, McAlester, for defendants in error.

ARNOLD, Justice.

Plaintiffs leased certain land to defendant and after the defendant had taken possession of the leased premises plaintiffs enjoined the defendant from interfering with the watering of certain livestock. Defendant has appealed from this judgment.

A motion to dismiss has been filed for the reason that the possession of the premises had been surrendered and the question involved is moot. The court called for response to the motion to dismiss and in the response filed it is admitted that the possession of defendant under the lease has ended. The motion to dismiss must be sustained. Injunctive relief alone was sought and no relief could be granted defendant since he is not entitled to possession.

In Harden v. Morris, 198 Okl. 398, 179 P.2d 144, it is stated:

"When the question presented by an appeal has become moot, the appeal will be dismissed."

It is stated in the response to the motion to dismiss that there is still to be determined the question of who shall be charged with the costs of the appeal. This court has held that where the issues on appeal have become moot it will not retain jurisdiction for the purpose of determining who shall be charged with the costs. Westgate Oil Co. v. Refiners Production Co., 172 Okl. 260, 44 P.2d 993; In re Protest Against Referendum Petition No. 5, Oklahoma City, 185 Okl. 393, 92 P.2d 374.

Appeal dismissed.