Opinion
No. 25,343.
Filed June 7, 1933.
1. APPEALS — Dismissal — Where Relief Obtained by Other Remedy. — An appeal of a mandamus proceeding to try the right to the office of township trustee should be dismissed where the defeated candidate had obtained the relief sought by a statutory proceeding to contest the election. p. 98.
2. APPEALS — Dismissal — Moot Questions. — When moot questions only are presented on appeal, and the decision of the case can have no practical effect, the appeal will be dismissed. p. 98.
From Martin Circuit Court; Milton S. Hastings, Judge.
Mandamus proceeding by the State on the relation of Ivan Sims against Daniel A. Watson and others. From a judgment against relator, he appealed. Appeal dismissed.
Frank E. Gilkison, for appellant.
Carlos T. McCarty and Fabius Gwin, for appellees.
The appellant was a candidate for township trustee. He brought this action in mandamus. His complaint presents the same questions and asks the same relief as the complaint in the case of the State of Indiana on the Relation of Fred Toon v. Laban Thompson, as Inspector et al. (1933), 204 Ind. 1560, 185 N.E. 117. The controversy arose out of the same election in the same county. The only practical difference is that the relator in this case was a candidate for a township office and not a county office. Error is predicated upon the sustaining of the demurrer to the complaint.
The appellees have interposed a motion to dismiss this appeal for the reason, among others, that the relief sought in this action has been obtained by the appellant through a 1. statutory proceeding to contest the election, initiated by the relator before the board of county commissioners of Martin County. The facts set out in the verified motion are not controverted. The statutory remedy was the proper one.
When moot questions only are presented on appeal, and the decision of the case can have no practical effect, the 2. appeal will be dismissed. Brown et al. v. Dicus (1909), 172 Ind. 51, 87 N.E. 716.
Appeal dismissed.