Chicago, M. & St. P. Ry. Co. v. City of Sioux Falls

• Decision Date: 17 January 1912
• Citation: 134 N.W. 46,28 S.D. 471
• Court: South Dakota Supreme Court
• Parties: CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Plaintiff and appellant, v. COMMISSIONERS OF THE CITY OF SIOUX FALLS et al., Defendant and respondent.

28 S.D. 471, 134 N.W. 46 (1912)

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Plaintiff and appellant v COMMISSIONERS OF THE CITY OF SIOUX FALLS et al.,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Appeal dismissed

William G. Porter, James D. Elliott, Perrett F. Gault

Attorneys for appellant.

D. J. Conway, City. Atty.

Bailey & Voorhees

Attorneys for respondents.

Opinion filed January 17, 1912

SMITH, J.

Plaintiff who is appellant here brought an action in the circuit court of Minnehaha county against the Board of Commissioners of the city of Sioux Falls and I. Fanebust & Sons, seeking to enjoin the defendants from entering into a contract for grading and improving Phillips avenue, between Fifth street and Riverside avenue, in the city of Sioux Falls. The complaint recites at great length the proceedings had under which it is proposed to let the contract to I. Fanebust & Sons, alleging divers and sundry grounds on which it is claimed the proceedings are invalid and should be perpetually enjoined.

The complaint further prays

"that during the pendency of this action the defendants and each of them, and all of their agents, employees, attorneys and assistants, and any and all others acting in their behalf, be enjoined and restrained from signing and executing the said contract, dated October 31, 1910, with I. Fanebust & Sons, and from in any manner whatsoever, entering upon, grading, excavating, or working upon or improving said Phillips avenue lying between Fifth street and First street in the said city of Sioux Falls, S. D., and be enjoined from taking any further steps or proceedings for the purpose of levying said special assessment or collecting the same, and from paying out any sums of money under said alleged contract or for any of the work, material, or improvements furnished or performed under the terms of said contract."

Upon this complaint supplemented by an affidavit of L. B. Beardsley, the defendants were ordered to show cause before the judge of the circuit court on the 22d day of November, 1910, why a preliminary injunction should not issue pursuant to the prayer of said complaint. It was further ordered that in the meantime the defendants be restrained from doing the acts complained of.

The order to show cause came on for hearing on the 30th of January, 1911, at which time the court entered an order denying plaintiff's motion for a preliminary injunction, vacating the ad interim restraining order issued on the 9th day of November, 1910, and dismissing the order to show cause. Thereafter on the 28th day of March, 1911, plaintiff perfected an appeal to this court from the order denying an injunction pendente lite and now seeks a reversal thereof upon this appeal. So far as the record discloses, no application was made to the trial court for a supersedeas bond or undertaking under the provisions of section 454, Code of Civil Procedure. In fact, the notice of appeal was not served until the 28th day of March, 1911, together with a bond for costs on appeal.

At the hearing of this cause on appeal, it was disclosed in open court, and conceded by counsel of both appellant and respondent, that the acts and things sought to be enjoined in the application for preliminary injunction denied by the trial court since said order have been fully done and performed; that a contract pursuant to the proceedings had by the commissioners of the city of Sioux Falls was entered into between the city of Sioux Falls and I. Fanebust & Sons as contractors for the grading and improving of Phillips avenue from Fifth street to Riverside avenue, and that the grading and improvements have since been completed by said contractors. The only relief prayed for or which could be granted upon this appeal is a reversal of the order of the trial court refusing an injunction pendente lite. A judgment of reversal in this court would be an idle act. In certain classes of cases where mandatory injunction may be an appropriate remedy, relief perhaps might be granted in the appellate court, but this is not such a case. Neither this court nor the trial court has power or authority to undo the things which have been done pending this appeal, under the proceedings complained of. For this...