Andeel v. Woods

Decision Date06 June 1953
Docket NumberNo. 38741,38741
Citation258 P.2d 285,174 Kan. 556
PartiesANDEEL et al. v. WOODS et al.
CourtKansas Supreme Court

Syllabus by the Court.

1. Injunction is an equitable remedy which operates in futuro.

2. When a question becomes moot, judicial action ceases.

3. This court will not review a case on its merits in which only injunctive relief was sought and denied and where, by reason of a change in circumstances since the judgment was rendered, a judgment of reversal would be wholly ineffectual. Nor will it consider the granting of a new trial in such a case after it has become impossible to have a new trial in the same case,

4. The record in an action for purely injunctive relief is examined, considered and held, the issues presented in the appeal are moot and the appeal is dismissed.

William Porter and Payne H. Ratner, Wichita, and John Madden, Jr., Ora D. McClellan, J. Wirth Sargent, P. K. Smith, Pat Warnick and Roy Wasson, all of Wichita, on the briefs, for appellants.

John F. Eberhardt, of Wichita, and Garner E. Shriver and George B. Powers, both of Wichita, were on the briefs, for appellees.

WEDELL, Justice.

This was an injunction action. Defendants prevailed and plaintiffs have appealed.

High school girls, members of Tally Hostess Chapter of the Sub-Deb Club, who attended Wichita High School East, and their parents, instituted an action to enjoin the board of education of the city of Wichita, the superintendent and principal of the school, from enforcing a resolution passed by the board on September 10, 1951. The resolution, ommitting the preliminary parts thereof, reads:

'Be It Therefore Resolved that the school administrators be instructed to deny all members, active or inactive, alumni or pledges, or in any degree affiliated with the Tally Ho, Tally Hostess Sub-Debs or other similar organizations, participation in any extra-curricular school activities.'

Before considering the appeal on its merits we are confronted with appellees' motion to dismiss the appeal on the ground the purpose of the appeal is to obtain a judgment which will enjoin appellees from enforcing this particular resolution in the future. They contend the appeal is moot. We are reminded an injunction is not an appropriate action to obtain relief for past or completed acts but operates only in futuro to prevent later acts, citing 28 Am.Jur., Injunctions, §§ 5, 7; Frizell v. Bindley, 144 Kan. 84, 94, 58 P.2d 95. Appellees assert it could serve no useful or practical purpose for this court to enjoin appellees from enforcing the particular resolution here involved for the reason it has been superseded by a subsequent resolution regularly adopted by the board on October 6, 1952, almost a year after the instant judgment was rendered; that present and future action of the board is now and will be based, first, on the last resolution and, second, also on additional facts which have developed since the instant action was tried.

Appellees also direct attention to the fact all students involved are seniors who will be graduated on June 1, 1953; that no substantial benefits can be gained by a continuance of this proceeding which the passage of time has rendered substantially, if not entirely, unavailable to them insofar as participation in extracurricular activities is concerned.

In support of appellees' contention the issues posed by appellants have become academic and moot, they cite State ex rel. v. Aetna Insurance Co., 88 Kan. 9, 127 P. 761; Anderson v. Board of Com'rs of Cloud County, 90 Kan. 15, 132 P. 996; Scott v. Glenwood Township, 105 Kan. 603, 185 P. 731; True v. McCoy, 119 Kan. 824, 241 P. 249.

Many other injunction cases are to the same effect. Some of them are: Meyn v. Kansas City, 91 Kan. 29, 30, 136 P. 898; Payne Shoe Co. v. Dawson, 94 Kan. 668, 146 P. 996; Ellis v. Landis, 118 Kan. 502, 235 P. 851; Ash v. Gibson, 146 Kan. 756, 74 P.2d 136; Dickey Oil Co. v. Wakefield 153 Kan. 489, 111 P.2d 1113; Row v. Artz, 168 Kan. 71, 211 P.2d 66; Diehn v. Penner, 16 Kan. 63, 64-65, 216 P.2d 815.

Injunctive relief, absent an express statute, is not demandable as a matter of strict right. It is addressed to the sound discretion of the court's equitable jurisdiction. True v. McCoy, supra. It is true the fact and act sought to be enjoined has been largely completed is often considered in denying injunctive relief. True v. McCoy, supra. However, although these students had only a short time to remain in school after the case was presented to this court and although that is a factor which may be considered in denying injunctive relief we are not inclined to place undue weight on that fact alone. It is possible that absent the resolution the students might have been chosen even at that late date in the school year to participate in some extracurricular activities.

Appellants do not controvert the facts on which the motion to dismiss the appeal is based. They have filed no brief in opposition to such motion but their counsel was commendably frank in oral argument. It was stated the question involved was one of public interest and should be decided. This court is not unsympathetic with appellants' desire. It, however, must be remembered the fact a question is one in which many people other than the parties to the litigation may have an abstract interest does not prevent an issue from becoming moot.

The rule that this court will not on appellate review decide a moot question in a situation where it cannot make its judgment effective has been applied not only in cases pertaining to private controversies but in those actually involving the public interest. Ellis v. Landis, supra; Row v. Artz, supra, 168 Kan. at page 72, 211 P.2d 66.

In the Diehn case, supra, we said:

'This court is committed to the rule that it will not consider and decide a question raised on appeal where it clearly appears that between the trial of an action and the submission of such question there has been a change of circumstances which would make any judgment it might render with respect thereto of no consequence to the particular issue litigated in the court below. [Citations.]' 169 Kan. at page 64, 216 P.2d at page 816.

In the Row case, supra, the rule was stated as follows:

'This court under numerous and varying circumstances has, in conformity with well established principles, declined to decide issues where its judgment could not be made effective. Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P.2d 1113, and cases therein cited. In other words, when a judgment is merely on an abstract question of law or fact and the authority of the court cannot be vindicated by the enforcement of process a judgment is a useless thing. Under such circumstances courts simply withhold their judgment.' (Our italics.) 168 Kan. at page 72, 211 P.2d at page 67.

In the Dickey Oil Co. case, supra, we held:

'When it clearly appears by reason of changed circumstances between the trial of an action and its review in this court that any judgment this court might render would be unavailing as to the particular issue litigated, this court ordinarily will not consider and decide the mooted issue whether one of law or fact.

'If the judgment of this court were of such a character as to constitute an...

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18 cases
  • Hernandez v. Pistotnik
    • United States
    • Kansas Court of Appeals
    • July 23, 2021
    ...928 (1976). Having an abstract interest in the outcome of litigation does not prevent an issue from becoming moot. Andeel v. Woods , 174 Kan. 556, 558, 258 P.2d 285 (1953) ; Moore [v. Smith] , 160 Kan. [167] at 170, 160 P.2d 675 [(1945)]."Mere stigma or ‘rightness’ is insufficient to justif......
  • Roll v. Howard
    • United States
    • Kansas Supreme Court
    • August 12, 2022
    ...appropriate action to obtain relief for past or completed acts but operates only in futuro to prevent later acts." Andeel v. Woods , 174 Kan. 556, 557, 258 P.2d 285 (1953). In addition to a temporary restraining order, Roll sought a permanent injunction. I do not see how a permanent injunct......
  • State v. Roat
    • United States
    • Kansas Supreme Court
    • June 19, 2020
    ...928 (1976). Having an abstract interest in the outcome of litigation does not prevent an issue from becoming moot. Andeel v. Woods , 174 Kan. 556, 558, 258 P.2d 285 (1953) ; Moore , 160 Kan. at 170, 160 P.2d 675. Mere stigma or "rightness" is insufficient to justify continuing to exercise j......
  • Gannon v. State
    • United States
    • Kansas Supreme Court
    • March 2, 2017
    ...that injunctive relief must address future action or remedy an ongoing wrong—not "wrongs already committed." See Andeel v. Woods , 174 Kan. 556, 559, 258 P.2d 285 (1953). But it incorrectly asserts that the panel ignored this well-known judicial tenet. The panel stated it considered both th......
  • Request a trial to view additional results

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