Caldwell v. Loveless

BRICKEN, P. J.

This appeal was from a judgment of the circuit court overruling a motion to strike an award of arbitrators in a matter pending between appellant and appellee.

[1]

Since the submission of this appeal in this- court it has, without dispute, been affirmatively made known to the court that the matters involved in the original proceedings have beeii amicably adjusted and fully settled between the parties, and that the present status is such that neither the appellant, defendant in the court below, nor the appellee, plaintiff in court below, now have any interest in the matters involved; that the interests and claims of both parties to this action have been purchased by another, not a party here or in the court below; that all the costs of the proceedings here and in the court below have been settled, and that there now remain no questions to be settled between these parties, and hence a decision of the case would be of no value; that said cause has become moot before this court.

[2, 3]

The necessary requisite to appellate jurisdiction is the existence of an actual controversy ; therefore it is not within the province of this court to decide abstract or hypothetical questions, which are disconnected from the gravity of actual relief, or from the determination of which no practical result can follow. Nor is it the province of this court to consider a fictitious case, submitted merely for the purpose of testing the right to do a particular thing.

[4]

The general rule is, if pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal may be dismissed. There are many instances in which such condition may arise. It may arise by the act of the appellant himself. Woodruff v. Austin, 16 Misc. Rep. 543 , 38 N. Y. Supp. 787 , or it may likewise arise by the act of the appellee, as where, pending the appeal, he does, or relinquishes the right to do, some act in respect to which the appeal was taken. Wallingford v. Benson, 17 S. C. 591; Foote v. Smith, 8 Wyo. 510 , 58 Pac. 898 ; 2 Cent. Dig. Appeal and Error, § 70 et seq. The condition may also arise from the act of the court a quo, that is to say, from some order or judgment in the case pending the appeal, which is made by the court, which renders the determination of the questions presented by the appeal unnecessary. Paris Electric Light Co. v. Martin (Tex. Civ. App.) 31 S. W. 243 ; 2 Cent. Dig. Appeal and Error, § 71 et seq. It may also arise by an act of law. Kidd v. Morrison, 62 N. C. 31 . And it has been held that mere lapse of time may create this condition. 2 Cent. Dig. supra. Similarly it arises where a litigation has ceased to. be between parties having adverse interests, etc. It has also been held, where all substantial interest in the controversy has been parted with or extinguished, the court wi-11 not hear the appeal merely to determine the rights to costs. Randolph v. Rosser, 7 Port. 249 .

The present status of this proceeding, ^as made known to the court, necessitates a denial of the petition for mandamus, and a dismissal of the appeal at the cost of appellant.

Appeal dismissed.