DocketNumber: No. 5175
Citation Numbers: 133 N.E.2d 633, 99 Ohio App. 354
Judges: MILLER, J.
Filed Date: 1/27/1955
Status: Precedential
Modified Date: 1/13/2023
This cause is before this court as an appeal on questions of law and fact from a judgment of the Common Pleas Court which enjoined the defendants, appellants herein, *Page 355 from interfering with the construction of a post office building to be located at 75 East Hudson Street in the city of Columbus, the same being under process of construction by the plaintiff, appellee herein. It is agreed by the parties that the issues presented have become moot for the reason that the United States government has cancelled its contract with the plaintiff for the construction of the building.
The defendants have filed a motion seeking an order dismissing the cause without prejudice, while the plaintiff has filed a motion for an order dismissing only the appeal. The question of costs does not arise for the reason that it appears the defendants are ready and willing to pay all the costs which may be taxed.
The defendants urge, and we think properly so, that if only the appeal is dismissed the restraining order will remain in effect under Section
"Regardless of the procedural question raised, it is the right if not the duty of the court, when once it has been judicially determined that the cause has become moot, to dismiss the action on its own motion. Miner v. Witt,
We agree with the plaintiff that the cases cited as authority by the court in the above statement are not parallel with the case at bar, in that they were appeals on questions of law *Page 356 and are not authority for the legal principle pronounced. Still, we are in accord with that principle. All sense of equity, justice and fair play would require that neither of the parties hereto be placed in an advantageous position because of the question becoming moot. On the other hand, such principles would require that the parties be left in the same position they were in at the commencement of the action.
In the case of Wick v. Youngstown Sheet Tube Co.,
"Many other authorities have been cited by the parties in this case, each side claiming that they support that party's contention, but we think we have referred to enough authorities to determine the principle governing the courts under such circumstances; that is, that the court will not permit thejudgment to prejudice either party in the cause. The dismissal of these causes would deprive the plaintiffs of the right to present to this court their ancillary issue of the right to recover attorney fees and other costs. If the motion of theplaintiffs to dismiss the appeal were granted, it would leavethe judgment in the court below unreversed, and the issue of theplaintiffs' right to maintain the actions and obtain the reliefprayed for would be res judicata." (Emphasis supplied.)
Since we do not have an issue on costs involved in the case at bar, we are of the opinion that the motion of the defendants to dismiss the action without prejudice should be sustained, and that of the plaintiff should be overruled.
Judgment accordingly.
WISEMAN, P. J., and HORNBECK, J., concur. *Page 357