State ex rel. Miller v. Albertson

Spalding, Ch. J.

This action was brought by the state on the relation of the attorney general to abate a liquor nuisance alleged to be maintained in the city of Bismarck. It was commenced on the 20th of April, 1910, by service of summons, complaint, and injunction, upon the defendants, all of whom defaulted. In October of that year proof was made, but before the judgment was entered, defendant Griffin, the owner of the premises affected, secured an order setting aside the default as to him, and permitting him to answer. This order was entered November 16, 1910. Tbe case went upon tbe December, 1911, calendar of the court, but by reason of tbe absence of defendant Griffin, it was taken from tbat calendar to be tried on notice of ten days by either party.

In August, 1912, tbe state applied for leave to file a supplemental and amended complaint, for tbe purpose of alleging tbe continuance of tbe nuisance down to tbat date. September 11, 1912, tbe court entered an order denying plaintiff’s application. On the same day an appeal was duly taken by tbe state from such order. Judgment was also entered, dismissing tbe action.

In view of tbe judgment it is apparent tbat neither an affirmance nor reversal of tbe order appealed from could have any effect upon the judgment, — tbat without a reversal of tbe judgment the reversal of tbe order would avail tbe state nothing. Tbe judgment would still remain in full force, and hence any decision of this appeal would be merely the determination of a moot question. That courts will not pass upon questions which are purely moot is elementary; and we need not discuss tbe matter, as a mere statement of tbe facts and principle is sufficient.

Tbe appeal is dismissed, but without prejudice to a review of tbe order appealed from on appeal from tbe judgment, should such appeal be perfected.