Smith v. SMITH , 209 Or. 96 ( 1956 )

209 Or. 96 (1956) 304 P.2d 421

SMITH
v.
SMITH ET AL

Supreme Court of Oregon.

Submitted on brief November 2, 1956. Dismissed December 5, 1956.

John B. Fenner, Corvallis, and Edgar Freed and Thomas H. Tongue, III, Portland, for appellant.

DISMISSED.

PER CURIAM.

This is an appeal by Frank L. Smith, an alleged incompetent, from an order of the circuit court of the state of Oregon, for Multnomah county, appointing one C.T. Kronenberg as guardian of the estate of the said Frank L. Smith.

On July 21, 1954, four of the children of the said Frank L. Smith filed their duly verified petition in the probate department of the above circuit court to have their father declared to be an incompetent person, and for the appointment of a guardian of his estate. On September 22, 1954, after a hearing, the court entered an order declaring the said Frank L. Smith to be an incompetent person, and appointing C.T. Kronenberg as guardian of his estate. On November 18, 1954, the said Frank L. Smith duly served and filed his notice of appeal to the Supreme Court of this state from said order declaring him to be an incompetent person and appointing a guardian of his estate. On October 29, 1954, the said Frank L. Smith filed a motion, and on November 24, 1954, an amended motion, to terminate said guardianship. On November 29, 1954, after a hearing, the court denied the motion to terminate the guardianship. The said Frank L. Smith on December 6, 1954, duly served and filed his notice of appeal to the Supreme Court from this latter order. Time to file the transcripts on appeal in both cases was duly extended by the court to February 20, 1955. After the appeals were duly perfected in this court, the cases were consolidated.

On October 27, 1956, the said Frank L. Smith duly filed in this court his written motion which, omitting formal parts, reads as follows:

"Comes now Frank L. Smith, appellant in the above entitled cause, by and through Thomas H. Tongue III, his attorney, and moves that the appeal herein be dismissed upon the ground that the said guardianship estate has now been terminated and closed by the Circuit Court of the State of Oregon for the County of Multnomah."

Attached to this motion was the written stipulation of the attorney for the guardianship estate that an order of dismissal might be entered as prayed for in said motion. Under date of November 2, 1956, this court entered an order dismissing that appeal.

1, 2. The question now arises whether the dismissal of that appeal renders moot the appeal from the order appointing a guardian. Smith contends that the termination of the guardianship has not rendered moot the appeal from the original order which declared him to be an incompentent person and appointed a guardian. We cannot agree with him. With the guardianship terminated, there remains nothing upon which our mandate might operate, whether we reverse or affirm the original order appealed from. The appeal now before us presents only an academic question which we are not called upon to decide. Oregon-Wash. R. & N. Co. v. School District No. 25, 89 Or 7, 10, 173 P 261; 5 CJS 35, Appeal and Error § 1455. Counsel for Frank L. Smith, the appellant, have offered no sound reason why we should further consider the questions raised on this appeal. The applicable rule is well stated in 5 CJS 36, Appeal and Error § 1455, as follows:

"Appellate courts determine only matters actually before them on appeal, and no others, and will not give opinions upon controversies or declare principles of law which cannot have any practical effect in settling the rights of the litigants. They consider only those questions that are necessary for the decision of the case and do not attempt further ``to lay down "a rule of guidance or precedent to the bench and bar of the state."'"

This appeal is dismissed without costs to either party.