Opinion
No. 33212.
October 14, 1947.
(Syllabus.)
APPEAL AND ERROR — Dismissal of appeal where question becomes moot.
Where, after a proceeding in error has been instituted in this court, a condition arises under which the decision of the question raised would result in granting no relief, and the determination of the issue can grant no result other than the awarding of the costs of the appeal, the case will be dismissed.
Appeal from District Court Sequoyah County; E.A. Summers, Judge.
Action by the State of Oklahoma ex rel. R.O. Ingle, County Attorney, against Ferrin H. Holcomb et al., in the nature of quo warranto. Judgment for defendants, and plaintiff appeals. Dismissed.
R.O. Ingle, County Atty., of Sallisaw, and Pierce Pierce, of Muskogee, for plaintiff in error.
Wall Green, of Sallisaw, and Kelly Brown, of Muskogee, for defendants in error.
In this proceeding the State of Oklahoma ex rel. R.O. Ingle, County Attorney of Sequoyah county, Okla., seeks to test the validity of the appointment and tenure of the defendants to the positions on the school board of independent consolidated school district No. 2, town of Vian, Okla.
After the trial in the district court, the defendants resigned and other officers were appointed and the tenure of the successors is not contested.
A motion to dismiss has been filed for the reason that the question involved is moot. We are of the opinion that the appeal must be dismissed. Harden v. Morris et al., 198 Okla. 398, 179 P.2d 144. In Webb v. Oklahoma Gas Electric Co., 88 Okla. 183, 211 P. 932, it is stated:
"Where, after a proceeding in error has been instituted in this court, a condition arises under which the decision of the question raised would result in granting no relief, and the determination of the issue can grant no result other than the awarding of the costs of the appeal, the case will be dismissed."
It is argued by the plaintiff in error that this court, under the rule announced in Payne, Co. Treas. v. Jones, 193 Okla. 609, 146 P.2d 113, will retain jurisdiction of a cause to determine a public question. Under the peculiar circumstances involving the appointment and tenure of the defendants in the case at bar, the particular legal question involved may never re-occur and we decline to apply the rule announced in the above decision.
Appeal dismissed.
HURST, C.J., DAVISON, V.C.J., and RILEY, BAYLESS, WELCH, CORN, GIBSON, and LUTTRELL, JJ., concur.