Franklin v. Peers

• Court: Virginia Supreme Court
• Writing for the Court: RIELY
• Citation: Franklin v. Peers, 95 Va. 602, 29 S.E. 321 (1898)
• Decision Date: 03 February 1898
• Parties: FRANKLIN . v. PEERS, Clerk of Court.

29 S.E. 321

95 Va. 602

FRANKLIN .

v.PEERS, Clerk of Court.

Supreme Court of Appeals of Virginia.

Feb. 3, 1898.

Appeal—Dismissal—Evidence—Competency. In support of a motion to dismiss an appeal, it may be shown by extrinsic evidence that the controversy between the litigants has ceased to exist.

Error to circuit court, Appomattox county. Action by W. C. Franklin against one Peers, clerk, etc. There was a judgment for defendant, and plaintiff brought error. Dismissed.

W. C. Franklin and L. L. Lewis, for plaintiff in error.

H. D. Flood, for defendant in error.

RIELY, J. A motion was made by the defendant In error to dismiss the writ of error awarded in this case.

The ground of the motion was that, after the judgment appealed from was rendered, and before the writ of error was applied for, the controversy between the plaintiff in error and his opponent as to the title to the office of attorney for the commonwealth for Appomattox county was determined on Its merits by the county court of the said county, in a proceeding instituted to that end, in the manner provided for by law for contesting the election of county officers, and that the question presented by the writ of error thereby became an extinct issue. The motion was supported by affidavits, and a certified copy of the record of the proceeding in the county court, which sustained the contention of the defendant in error.

The plaintiff in error did not attempt to controvert the fact that such contest had been made and decided in favor of his opponent, but asserted that, If this were true, it was not competent to show it by extrinsic evidence; that this court could only consider the transcript of the record of the judgment appealed from; and that if, from that, it appeared that the judgment was erroneous, he was entitled to have it reversed.

Whenever it appears or is made to appear that there is no actual controversy between the litigants, or that, if it once existed, it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case. It is not the office of courts to give opinions on abstract propositions of law, or to decide questions upon which no rights depend and where no relief can be afforded. Only real controversies and existing rights are entitled to invoke the exercise of their powers.

When it appears from the record, or from matters of which courts may take judicial notice, that the controversy that once existed has terminated by lapse of time, the appellate court will dismiss the writ of error or appeal. Shumate v. Spilman, 10 Va. Law J. 443; Mills v. Green, 159 V. S. 651. 16 Sup. Ct. 132; and Cutcomp v. Utt, 60 Iowa, 156, 14 N. W. 214.

And when it does not so appear that there is no controversy existing between the litigants, or that, if it once existed, it has been settled or ceased to exist, it results, from the necessity of the case, in order that imposition upon judicial tribunals may be prevented, that It may be shown by extrinsic...