Elbon v. Hamrick

• Decision Date: 08 March 1904
• Citation: 46 S.E. 1029
• Court: West Virginia Supreme Court
• Parties: ELBON. v. HAMRICK et al.

46 S.E. 1029

ELBON.

v.HAMRICK et al.

Supreme Court of Appeals of West Virginia.

March 8, 1904.

ERROR—DISMISSAL—CONTEST AS TO OFFICE-EXFIRATION OF TERM.

1. When, pending a writ of error, without fault of a party, an event occurs rendering it impossible for the appellate court, if it should decide in favor of the plaintiff, to grant him substantial relief, the court will not decide the merits and give formal judgment, but will dismiss the writ of error without awarding costs.

2. When a writ of error involves a contest as to an office, and while it is pending the term of the office ends, the writ of error will be dismissed without decision of the case, and without judgment as to costs.

(Syllabus by the Court.)

Error to Circuit Court, Webster County; W. G. Bennett, Judge.

Certiorari by W. W. Elbon against Benjamin Hamrick and others. Judgment for defendants, and plaintiff brings error. Dismissed.

Linn & Byrne and W. T. Talbott, for plaintiff in error.

Morton & Wysong and H. O. Thurmond, for defendants in error

BRANNON, J. W. W. Elbon was elected councilman of the town of Addison, Webster county, but upon contest before the town council he was declared ineligible because not a freeholder, and then he sued out a writ of certiorari to reverse that decision, but the certiorari was dismissed by the circuit court as improvidently granted. Elbon obtained a writ of error.

The case now presents to this court for decisior only a moot or useless question, for the reason that the term of office has expired, and, if Elbon were successful, he could not take the office. Our case of State v. Lambert, 52 W. Va. 248, 43 S. E. 176, fully discusses this, holding that if, pending a writ of error to a judgment awarding a mandamus commanding a town clerk to place a candidate's name on an official ballot, the election has been held, the writ of error will be dismissed "When pending an appeal, without any fault of defendant, an event occurs which renders it impossible for the appellate court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief, the court will not proceed to a formal judgment, but will dismiss the appeal." Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 203. There a party sought a right to vote, but the election was over. Taylor v. Maynor, 46 W. Va. 588, 33 S. E. 260, is decisive of this case, holding that, where a ease involves right to town offices, and the term ends during pendency of a writ of error, the writ of...