Meyn v. The City of Kansas City
| Decision Date | 06 December 1913 |
| Docket Number | 18,398 |
| Citation | 136 P. 898,91 Kan. 29 |
| Parties | FRED MEYN, Appellant, v. THE CITY OF KANSAS CITY, KAN., et al., Appellees |
| Court | Kansas Supreme Court |
Decided July, 1913
Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.
SYLLABUS BY THE COURT.
1. TEMPORARY INJUNCTION--Denied--Judgment--Appeal--Change of Status Quo--Appeal Dismissed. Where a temporary injunction is denied in an action brought solely to restrain the erection of a viaduct by authority of a city, and the trial court renders judgment for the defendant upon the pleadings, an appeal therefrom will be dismissed if it appears that in the meantime the structure had been completed, at a cost of $ 70,000.
2. No Bar to Action for Damages. In such case the judgment will not be a bar to a subsequent action by the plaintiff for damages.
L. W Keplinger, and C. W. Trickett, both of Kansas City, for the appellant.
Richard J. Higgins, and William H. McCamish, both of Kansas City, for the appellees.
Fred Meyn brought an action to restrain the city of Kansas City from entering into a contract with two railroads for the construction of a viaduct, and to enjoin proceedings under such contract, including the building of the viaduct. A preliminary injunction was refused, and judgment on the pleadings was rendered in favor of the defendants. The plaintiff appeals.
The defendants have made a showing that the acts sought to be enjoined have already been fully performed, and a dismissal is asked on that ground. The ordinary rule is that in that situation the decision of the trial court will not be reviewed. (See 2 Cent. Dig., Appeal and Error, § 75; 1 Dec. Dig., Appeal and Error, § 19.) The plaintiff contends that he is entitled to a hearing because of the judgment for costs rendered against him, and cites Cheesebrough v. Parker, 25 Kan. 566, in support of the contention. It was there said that the plaintiff in ejectment could have a review of the judgment for costs against him, notwithstanding he had conveyed the property to the defendant pending the appeal. The action, however, was not merely for possession, but for rents and profits as well. The rule is settled that in this court "appeals are not heard for the determination of matters of cost only." ( Anderson v. Cloud County, 90 Kan. 15, 17, 132 P. 996.)
A judgment denying an injunction is sometimes reversed notwithstanding the act sought to be enjoined has been performed, where, as in tax proceedings, the court has power to restore the original status. (Bonnewell v. Lowe, 80 Kan. 769, 104 P. 853.) This principle seems to have been applied where minor alterations in partitions in rented property were the subject of controversy. (Moses v. Salomon, 150 A.D. 563, 135 N.Y.S. 408.) Assuming that the court would have jurisdiction to command the removal of the viaduct here...
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