Abels v. Turner Trust Co.

• Decision Date: 14 December 1918
• Citation: 176 P. 884,31 Idaho 777
• Court: Idaho Supreme Court
• Parties: G. J. S. ABELS, Appellant, v. TURNER TRUST COMPANY, a Corporation, GEORGE E. MABEY, Sheriff of Bannock County, Idaho, and THE BANNOCK ABSTRACT & TRUST COMPANY, a Corporation, Respondents

176 P. 884

31 Idaho 777

G. J. S. ABELS, Appellant, v. TURNER TRUST COMPANY, a Corporation, GEORGE E. MABEY, Sheriff of Bannock County, Idaho, and THE BANNOCK ABSTRACT & TRUST COMPANY, a Corporation, Respondents

Supreme Court of Idaho

December 14, 1918

APPEAL AND ERROR-MOOT QUESTIONS.

This court will, upon motion to dismiss, consider evidence outside the record tending to show that since the entry of the judgment or order appealed from the substance of the controversy between the parties has disappeared, and when it appears that only a moot question remains to be determined the appeal will be dismissed.

[As to dismissal of appeal in mandamus proceeding where question involved has become immaterial, see note in Ann.Cas. 1912C 247]

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. R. M. Terrell, Judge.

Appeal from an order dissolving a preliminary injunction. Dismissed.

Appeal dismissed. Costs awarded to respondents.

W. H Witty, for Appellant, cites no authorities.

Budge &amp Merrill, for Respondents.

In the following cases the appeal was dismissed upon information supplied to the court by affidavits of matters which had transpired after the perfecting of the appeal, which would render the matter involved a moot question. (Wilson v Boise City, 7 Idaho 69, 60 P. 84; Waters v. Dunn, 18 Idaho 450, 110 P. 258; Roberts v. Kartzke, 18 Idaho 552, 111 P. 1.

MORGAN, J. Rice, J., concurs. Budge, C. J., took no part in the opinion.

OPINION

MORGAN, J.

This action was commenced by appellant for the purpose of procuring an injunction to restrain the sale of property pursuant to an affidavit and notice to the sheriff in a chattel mortgage foreclosure proceeding. A preliminary injunction was issued and was, upon motion of respondents, dissolved. This appeal is from the order dissolving the injunction.

Respondents have moved to dismiss the appeal upon the ground, among others, that the sale, which was temporarily enjoined, has been made since the dissolution of the injunction, and, therefore, no relief can be afforded by a review of the order appealed from even if it resulted in a reversal thereof. In support of their motion respondents have submitted a certified copy of the sheriff's return in the foreclosure proceeding showing that after the injunction was dissolved the sale was held and the property in question was sold.

Appellant insists that since the sheriff's return of sale is not a part of the record on appeal, a motion to dismiss cannot be based upon it, and that such a motion must, to be entertained, be predicated upon some irregularity in procedure.

This court has heretofore, without expressly deciding that it could properly do so, considered facts, as grounds for dismissal, which arose after the entry of the judgment or order appealed from and which were not incorporated in the record on appeal. (Wilson v. Boise City, 7 Idaho 69, 60 P. 84; City of Wallace v. Deane, 8 Idaho 344, 69 P. 62; Roberts v. Kartzke, 18 Idaho 552, 111 P. 1; Coburn v. Thornton, 30 Idaho 347, 164 P. 1012.)

The doctrine properly applicable to this question of practice is...