Anderson v. W. G. Rawley Co.
| Decision Date | 08 May 1923 |
| Docket Number | No. 1472.,1472. |
| Citation | 27 Haw. 150 |
| Parties | SUSAN A. ANDERSON v. W. G. RAWLEY COMPANY, LIMITED. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
MOTION TO DISMISS WRIT OF ERROR.
Syllabus by the Court
When in a suit for an injunction to restrain the erection of a building the respondent proceeds with and completes the erection of the structure pending the hearing, he does so at his own risk and does not deprive the court of jurisdiction or render the original issues “moot questions.” The fact that a temporary injunction was not secured by the complainant upon the filing of the bill does not render this rule inapplicable.W. B. Pittman (also on the brief) for the motion.
B. S. Ulrich and Marguerite K. Ashford ( Thompson, Cathcart & Ulrich on the brief) contra.
PERRY AND LINDSAY, JJ., AND CIRCUIT JUDGE ANDRADE IN PLACE OF PETERS, C. J., DISQUALIFIED.
This is a bill in equity wherein the complainant prays for an injunction to restrain the respondent “from erecting, continuing with the erection of and/or from maintaining or allowing to remain” upon certain premises situate on the Waikiki-makai corner of Beretania and Keeaumoku streets in Honolulu a certain building the construction of which had been commenced “or any factory building or building designed for use as an ice-cream factory or factory for the preparation of dairy products” or any “building designed for use as a store, a factory, a dairy, or any of the other purposes designed in Section 3 of Ordinance 175 of the City and County.” This bill was filed and service thereof and of summons was made upon the respondent on June 2, 1922. On June 10, 1922, in pursuance of a written stipulation, an amended bill was filed which was “to be considered as having been filed on the date of the filing of the original complaint.” After answer and replication thereto, trial was had on August 1 to 4, 1922, and on August 9 a decree was filed dismissing the bill. On February 2, 1923, a writ of error was issued bringing to this court for review the decree dismissing the bill.
The respondent moves that the writ of error be dismissed on the ground that the issues raised by these assignments of error are now “moot questions.” The reason advanced in support of this motion is that the building, the erection of which is by the bill sought to be enjoined, has been completed.
It is alleged in the original bill that the respondent “is now threatening and commencing to erect” the building complained of. In the amended bill the allegation in this respect is that the respondent “is now commencing to erect the building,” that “the erection” of the building “has in fact been started” and that the erection “was started wholly after April 7, 1922,” (when Ordinance No. 207 which is referred to in the pleadings took effect). In the answer, which was filed on June 19, 1922, the respondent admits that it “is erecting” the building and that the erection “was commenced after April 7, 1922” and further alleges that on the date of the filing of the suit, to wit, on June 2, 1922, the building was “more than half completed.” In the complainant's replication, filed on June 20, it is denied that on June 2 the building was more than half completed and it is alleged that at that time “no more than portions of the foundation of said building had been erected.”
The contractor who erected the building testified that the contract for its construction was dated and executed on May 18, 1922, that actual work on the building was commenced on the same day, that on June 2, 1922, (the date of the commencement of this suit) the excavation for the walls of the building had been completed and forms for concrete had been erected to a height of three feet and six inches above the ground and the concrete had been poured for all of the walls up to that height, that “that was as far as the job was at that time” and that “the building will be finished in two weeks” (this testimony was given on August 2, 1922). He also testified that the expenditures for the construction of the building as far as it had progressed up to and including June 2 were about $4800 and that the contract price for the whole building was $17,500. W. G. Rawley, a witness for the respondent, also testified (on August 4) that “the building will be finished in two weeks * * * it is practically completed now.” At the trial there was no evidence at variance with this testimony of these two witnesses.
It appears, therefore, that at the time that the suit was commenced and an injunction prayed for, all that had been done on the building was to make the necessary excavation for the foundation and to pour concrete for the walls up to a height of three feet and six inches and that the construction of the building had so far progressed on August 2 that in the opinion of the contractor and of W. G. Rawley, who was one of the incorporators of the respondent company and one of its principal stockholders and the manager, it would “be finished in two weeks” and, as stated by Rawley (August 4, 1922), “it is practically completed now.”
The duty and the inclination of courts, it is clear, are to decide actual controversies only and not “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Murphy v. McKay, 26 Haw. 171, 173, and Mills v. Green, 159 U. S. 651, 653. It is equally...
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