Opinion
No. 7197.
June 24, 1963. Rehearing Denied September 9, 1963.
Appeal from the District Court, McKinley County, Frank B. Zinn, D.J.
Denny Glascock, Gallup, Baird Lundquist, Zion, Ill., for appellant.
Bigbee Byrd, Santa Fe, Akolt, Turnquist, Shepherd Dick, Denver, Colo., for appellee.
Appellant, Suburban Telephone Company, sought, by mandamus, to require The Mountain States Telephone and Telegraph Company to establish and maintain a toll connection at Gallup, New Mexico, for Suburban's customers at Quemado, New Mexico. This appeal is from an order of the district court quashing and vacating an alternative writ of mandamus.
At oral argument, it appeared that the issues of this case might be resolved, depending upon our decision in The Mountain States Telephone and Telegraph Company v. Suburban Telephone Co., N.M., 384 P.2d 684. It was therefore determined to advance No. 7285 on our calendar, and an opinion therein has today been filed.
The practical effect of the decision in No. 7285 is that appellant has, at least at this time, no right to furnish telephone service at Quemado, New Mexico, and thus the instant case is rendered moot. The opinion in the case referred to results in a change of circumstances so that any decision in this case would be of no practical purpose, insofar as the parties are concerned. The grounds upon which appellant based its cause of action no longer exist. See Benton v. Singleton, 1902, 114 Ga. 548, 40 S.E. 811, 58 L.R.A. 181; Heitmuller v. Stokes, 1921, 256 U.S. 359, 41 S.Ct. 522, 65 L.Ed. 990; Lake Charles Metal Trades Council v. Newport Industries (5th Cir. 1950), 181 F.2d 820; cf. Ellison v. Ellison, 1944, 48 N.M. 80, 146 P.2d 173. We do not believe that the questions are of public interest and which might bear upon subsequent litigation between the parties so as to require us to determine the case either on its legal issues or the merits (but cf. Freeman v. Medler, 1942, 46 N.M. 383, 129 P.2d 342 ).
The appeal will be dismissed. It is so ordered.
COMPTON, C.J., and CHAVEZ and NOBLE, JJ., concur.
MOISE, J., having recused himself, not participating.