Hart v. Bye

• Decision Date: 29 August 1957
• Docket Number: No. 7701,7701
• Citation: 86 N.W.2d 635
• Parties: John B. HART, Plaintiff and Respondent, v. Clarence BYE, Edward Jollie, Arthur Lindbo, Walter Tastad, and Bennie Haagenson, as the Board of County Commissioners of Rolette County, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 635

86 N.W.2d 635

John B. HART, Plaintiff and Respondent, v. Clarence BYE, Edward Jollie, Arthur Lindbo, Walter Tastad and Bennie Haagenson, as the Board of County Commissioners of Rolette County Defendants and Appellants.

No. 7701.

Supreme Court of North Dakota.

Aug. 29, 1957.

Rehearing Denied Dec. 20, 1957.

Syllabus by the Court

1. As a general rule, an appeal will be dismissed if the questions raised become moot or academic, not leaving an actual controversy to be determined. Acquiescence by the appellant in the judgment of the trial court, as a general rule, necessitates a dismissal. The acquiescence must be full, voluntary and unequivocal.

2. The exception to the moot question rule is that the appeal will not be dismissed if it involves a question of great public interest.

3. A moot question will not be passed upon simply to relieve an appellant from paying a judgment for costs, as costs are distinct from and do not relate to the merits of the action, arising only after the question of merits has been passed upon.

4. One who is not a party of record, nor a representative nor privy to a party of record, has no right of appeal.

5. A county commissioner, in his individual capacity, has no right of appeal in an action brought against the Board of County Commissioners.

Clyde Duffy, Devils Lake, for plaintiff, respondent.

Rausch & Chapman, Bismarck, for defendants, appellants.

MARK H. AMUNDSON, District Judge.

Judgment was entered April 15, 1957 in the District Court in an action brought by plaintiff, for himself and other taxpayers, against Bye, Lindbo, Tastad, Haagenson and Jollie, as the Board of County Commissioners of Rolette County, restraining said Board from using any part of the Memorial Fund for division among or use by or for or on behalf of the American Legion Posts of said Rolette County, and from using any part of said Memorial Fund as a donation or loan to any non-public body or instrumentality, and for costs.

An Appeal was taken.

Prior to the arguments on the merits, respondent moved the dismissal of the appeal on the ground that the questions involved are moot and in support of his motion filed a certified copy of an excerpt of the minutes of a meeting of the Board of County Commissioners of date June 4, 1957. Such excerpt contained the text of a resolution rescinding and annulling all of the resolutions heretofore passed by said Board of County Commissioners relating to the Memorial Fund and the disbursement of said Memorial Fund by dividing said fund in six equal parts, to the submission of projects by the Posts, to the advertising for bids, the acceptance of certain bids, and which resolutions so rescinded had been duly passed on by the District Court.

The resolution further provided as follows: 'Be it further resolved that the Board accepts the judgment of April 15, 1957, as a final decision upon the merits of the issues involved and that no appeal therefrom is authorized.'

Respondent's motion was resisted and the affidavit of one Chapman was duly filed; such affidavit stated in substance that he is the attorney for said Tastad, Haagenson and Jollie, who were county commissioners at the time of the commencement of this action, that he has been compensated for his work herein by five of the American Legion Posts of Rolette County; and that such Legion Posts are interested parties in the appeal and claim to have binding contracts with Rolette County in connection with the disbursement of said Memorial Fund; that the County Commissioners have received bids from contractors on the proposed memorials; that the return of their certified bid checks to said contractors was the action of the County Auditor alone.

An appeal will be dismissed if the questions raised therein become moot or academic, not leaving an actual controversy to be determined. Acquiescence by appellant in the judgment of the trial court, generally necessitates a dismissal. Heinemeyer v. Mercer County, 52 N.D. 720, 204 N.W. 182; Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672.

Appellants rely upon the case of Froemke v. Parker, 39 N.D. 628, 169 N.W. 80, as sustaining their contention that the appeal may not be dismissed. In that case, appellants complied with the judgment of the trial court, only pending the appeal and for the purpose of avoiding the necessity for a supersedeas bond. This case emphasizes the rule above stated, that the acquiescence in the judgment of the trial court must be voluntary, full and unequivocal.

The acquiescence of the Board is complete in that they accept the judgment of the trial court as a final decision on the merits of this lawsuit.

However, appellants invoke the exception to the moot question rule and say that, even though the Board has accepted the judgment of the trial court, the questions involved on the merits should be passed upon because these are questions of great public interest.

There is no well defined rule as to what constitutes great public interest. In O'Laughlin v. Carlson, 30 N.D. 213, 152 N.W. 675, it was held that the contitutionality of a statute relating to the elections and terms of County Commissioners should be determined, even though the controversy had become moot; a like holding appears in State ex rel. Dakota Trust Co. v. Stutsman, 24 N.D. 68, 139 N.W. 83, with reference to the power and authority of the R. R. Commissioners to regulate public utilities such as public warehouses. But a decision on the merits was denied in State ex rel. Anderson v. Sieg, 63 N.D. 724, 249 N.W. 714, on a question relating to whether or not a statute relating to the recall of city officials was repealed, and in North Dakota Wheat Growers' Ass'n v. Moore, 52 N.D. 904, 204 N.W. 834, on matters relating to the internal affairs of a private corporation; and in Dakota Coal Company v. Fraser, 8 Cir., 267 F. 130, a review was denied even though the controversy related to the rights of the State Adjutant General to seize private property, where it was argued a decision would act as a guide in like controversies.

In State ex rel. Freeling v. Lyon, 63 Okl. 285, 165 P. 419, 420, the following statement is made: 'We understand 'public interest' to mean more then mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the...