Holter v. Wagoner

Appeal — Dismissal of Appeal — Contract for Well Digging — Injunction —Futility of Remedy. In a suit to restrain construction of artesian wells by a township and issuance of bonds in .payment tberefor, where a temporary injunction was dissolved at final hearing and judgment of dismissal entered, and no immediate notice of appeal and undertaking was given, on appeal from such judgment, pursuant to. Sec. 454, Code Civ. Proc., to continue the temporary injunction in force, the appeal will be dismissed on a showing that the wells have been completed and the bonds issued. Polley, J., dissenting.

Appeal from Circuit Court, Lyman County. Hon. William WILLIAMSON, Judge. Action by Engebrit J. Holter against John Wagoner and others to enjoin the construction of artesian wells by Norbeck & Nicholson Company for Grouse Township, Lyman County, South Dakota. From a judgment for defendants dissolving a temporary injunction and dismissing the action, and from an order denying a new trial, plaintiff appeals. This is not a case where in the acts involved have been performed; the relief sought is not one that cannot now be granted effectively. The questions at issue are the legality of said artesian well proceedings; the legality of the election; the validity of the contracts, and even though no injunction had been asked for, yet these questions are not abstract questions but determine the liability of the township for the indebtedness incurred. The case of the C., M. & St. P. Ry. Co. v. Commissioners, 134 N. W. 46, ,is not parallel. The bonds are void; and if it should be determined that our contention is correct, then the bonds fall. Furthermore, the showing of the defendants is that one of the defendants is the present holder of the bonds, and a judgment of this court decreeing the invalidity of the proceedings would be effective as to the bonds in the hands of on$ of the defendants. We do not ask the court to undo anything that has been done pending this appeal. If these proceedings were not only irregular but absolutely void, then no act pending this litigation could have any' validity and the determination of the issues in this case is as conclusive and effective as though the action had been to prevent the township from making levy to meet the obligation arising from the construction of these wells. The whole issue as to the liability of the township of Grouse for the indebtedness attempted to be incurred can be decided and effectively decided by a decision of this appeal. There is no showing that these bonds were issued so as to make them effective or enforcible; further, there was no authority in the township to give these bonds to the contractors in payment of the contract price. The fact that that was done, of itself, would imply collusion between the supervisors of Grouse township and -the Norbeck & Nicholson Company, the contractors and now holders of the bonds, each of whom are defendants in this case. There is no issue or contest over the facts involved on this motion'. It stands uncontroverted that all of the matters and things sought to be enjoined in the suit have been performed, and that if this court should hold that the circuit court was in error and that the appellants were entitled to every relief prayed for in his complaint, yet such judgment would be. fruitless and unavailing and incapable of enforcement at this time. Appellant could have preserved his rights by taking out a supersedeas 'bond but he failed to do so. This action now stands in exactly the same position as if a new action were commenced, asking the court to enjoin the part}’’ from doing something that had already been done. C., M. & St. P. Ry. Co. v. Com. of City of Sioux Falls, (S. D.) 134 N. W. 46; In re Wilken, 22 S. D. 135.