Baird v. Hawks

Full title: BAIRD et al. v. HAWKS et al

Court: Supreme Court of Oklahoma

Date published: Mar 14, 1933

20 P.2d 581 (Okla. 1933)

163 Okla. 33

Opinion

No. 24387

Opinion Filed March 14, 1933. Rehearing Denied April 4, 1933.

(Syllabus.)

Appeal and Error — Dismissal — Moot Questions.

Where the judgment of the court below is not superseded, and thereafter defendant in error performs the act which leaves nothing to determine except abstract or hypothetical questions disconnected with the granting of actual relief and raises an issue which is merely incidental to the one already determined, the question will be declared moot and the appeal based thereon will be dismissed.

Appeal from District Court, Lincoln County; Tom Pace, Assigned Judge.

Injunction by Ira F. Baird et al. against Sam R. Hawks et al., members of the State Highway Commission. Judgment for defendants, and plaintiffs appeal. Dismissed.

Erwin Erwin, for plaintiffs in error.

J. Berry King, Atty. Gen., and W.C. Lewis, Asst. Atty. Gen., C.C. Curry, for defendants in error

PER CURIAM.

This is an appeal from a judgment of the court denying restraining order against the Highway Commission, attempting to restrain them from letting of contracts in Lincoln county.

The Attorney General has moved to dismiss the appeal upon the grounds that the question has become moot.

In order to supersede the judgment of the court below, application was made to this court to fix the amount of a supersedeas bond, and this court denied the application of the plaintiffs in error on the 17th day of January, 1933.

The plaintiffs in error have filed response in which there is a statement as follows:

"The purpose of this action is not only to enjoin the construction of the road in question, but to enjoin the expenditure of any money thereon."

The words following the last conjunction are underscored in the brief of the respondent.

Obviously, if the state cannot be stopped from letting the contract, it cannot be stopped from doing the things incident thereto, the payment of obligation thereby created. Upon the authority of Emrick v. Highway Commission, 147 Okla. 252, 296 P. 412, the appeal is therefore dismissed.

ANDREWS, J., not participating. WELCH, J., dissents.