Whidden v. Broadus

Appeal and Error. Dismissal. Grounds. Abstract question. The supreme court will, of its own motion, dismiss an appeal from á judgment denying mandamus to compel a county superintendent to employ petitioner as a school teacher for a certain term, where such term has expired and the appeal therefore only pre-' sented an abstract question.

Appear from the circuit court of Lamar county., Hon A. E. Weathersby, Judge. Mandamus by G. W. Whidden against A. Q. Broadus, County Superintendent of Education. From a judgment denying the relief prayed for, the plaintiff appeals. This is a motion to dismiss the appeal from a judgment on a petition filed by the appellant for a writ of mandamus seeking to compel, the appellee, superintendent of education of Lamar county, to contract with appellant to teach a public school in said county for a term beginning on the first Monday in October, 1913, and extending over a period of six months. The motion to dismiss recites the fact that the time has passed for teaching said school, as is shown by the record, and that the question before the court "now is simply a moot question, since appellant could not be benefited by a reversal. We understand it to be the rule of the court that it will dismiss an appeal, without settling the merits of the casé, only when its decision would not benefit either party, and Mclnms v. Pace, 78 Miss. 550, 29 So. 855, McDaniel v. Hurt, 92 Miss. 197, 41 So. 381, and Pafhausen v. State, 94 Miss. 105, 47 So. 897, cited by counsel does not seem to be in point, for the reason that if the case before the court was settled in favor of appellant, it would secure to him the right to accept the election as teacher at the hands of the trustees of any public school in said county, before the timé for the annual election of a trustee, and appellant would be bound to accept such election as binding oil him, so that the settlement of the question involved would be a direct benefit to appellant, if his contentions are correct, and this would be true, even though the court could not order the writ of mandamus to issue. In other words, the appellant maintains that the trustees of public schools have the right and authority to elect him as a teacher of their school before the time fixed by law for the annual election of trustees for said school, and claims that when so elected, it secures to him a valuable right, the right to teach and earn money, the appellee as county superintendent of public education denies the authority of the trustees, and refuses to recognize the right of appellant, when so elected, to teach in the public schools, and certainly a settlement of this question is of interest to appellant, and if his contention should be sustained, would result in a di-. rect benefit to him, regardless of whether the court ordered the writ issued or not. We, therefore, respectfully submit that the motion to dismiss ought to be overruled, and the ease heard on its merits, and the rights of the parties settled. As may be seen by an examination of the original petition shown in the record in this cause, this is a per tition for the issuance of a writ of mandamus to compel A. Q. Broadus, county superintendent of education of Lamar county, appellee here, to contract with G. W. Whidden, appellant here, to teach the winter term of the Pine Grove Free School in said county for the scholastic year, 1913-14, which term began on the first Monday of October, 1913, and ended six months thereafter (see petition in record before court); in addition to the affidavit of the superintendent of education filed as an exhibit to the motion to dismiss showing that the .said term has already been taught, this court will take judicial knowledge of the fact that the scholastic year .1913-14 ended on the 31st day of Angnst 1914. (Láws 1914, chapter 187.) ■ ■ The term'having already been taught and the year having ended, this court could not grant relief to appellee, regardless of what its opinion might be, and there is nothing before the court to determine and a reversal •of the case could do no good to any one. See Mclmds v. Pace, 78 Miss. 550, 29 So. 835, McDaniel v. Hurt, 92 Miss. 197, 41 So. 381, Pafhausen v. State, 94 Miss. 103, -47 So. 897. We respectfully submit that the cause ought to be ■dismissed at the cost of the appellant.