State Ex Rel. Lilly v. Carter

CourtSupreme Court of West Virginia
Writing for the CourtROBINSON
Citation60 S.E. 873,63 W.Va. 684
Decision Date03 March 1908
PartiesSTATE ex rel. LILLY et al. v. CARTER et al.

60 S.E. 873
63 W.Va.
684

STATE ex rel. LILLY et al.
v.
CARTER et al.

Supreme Court of Appeals of West Virginia.

March 3, 1908.


1. Appeal—Moot Questions—Review.

Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3122.]

2. Same—Dismissal.

If, pending writ of error to a judgment awarding mandamus commanding the appointment of certain election commissioners, the election has been held, and the alleged right involved has thereby ceased to exist, the writ of error will be dismissed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3122.]

(Syllabus by the Court.)

Error from Circuit Court, Mercer County.

Application by the state, on the relation of H. A. Lilly and others, against E. E. Carter and others, for writ of mandamus. From an order granting the writ, defendants bring error. Dismissed.

Harold A. Ritz, for plaintiffs in error.

ROBINSON, J. A writ of mandamus was sought and obtained April 17, 1906, compelling respondents, the mayor and council of the city of Bluefield, to appoint certain commissioners for an election in said municipality to be held on the first Tuesday in May of that year. To the judgment awarding such writ of mandamus this writ of error was prayed and awarded April 20, 1906. It is therefore to be observed that the election at which said commissioners were to serve has long since been held. The determination of the controversy at this date could have no vitality. It would avail nothing to any of the parties. It could not have bearing upon, or affect, the manner of holding such election, or the result thereof. When the date of that election passed, rights in relation to the holding thereof also passed out of substantial existence. Time has caused the questions involved to be mere abstract propositions or moot questions.

This case is therefore controlled by State v. Lambert, 52 W. Va. 248, 43 S. E. 176, wherein it is held, upon reason and eminent authority, that we cannot decide moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property. That case was quite analogous to this, and it is there further held: "If, pending a writ of error to a judgment of a circuit court awarding a peremptory writ of mandamus...

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89 practice notes
  • State ex rel. McKenzie v. Smith, No. 29645.
    • United States
    • Supreme Court of West Virginia
    • June 28, 2002
    ...and is actually in violation of the Workers' Compensation Act.6 569 S.E.2d 818 In Syllabus Point 1 of State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908), this Court established the general doctrine with regard to mootness by Moot questions or abstract propositions, the decision......
  • Israel by Israel v. West Virginia Secondary Schools Activities Com'n, No. 18904
    • United States
    • Supreme Court of West Virginia
    • December 20, 1989
    ...Activities Comm'n v. Oakley, 152 W.Va. 533, 537, 164 S.E.2d 775, 778 (1968), quoting Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 However, we, along with most courts, have tempered the inflexibility of mootness jurisprudence in recent years. In State ex rel. M.......
  • Cooper v. City of Charleston, No. 32612.
    • United States
    • Supreme Court of West Virginia
    • December 1, 2005
    ...of controverted rights of persons or property are not properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908)." Syllabus Point 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 Thornton Cooper, Esq., South Charleston, ......
  • State ex rel. Jeanette H. v. Pancake, No. 27061.
    • United States
    • Supreme Court of West Virginia
    • April 24, 2000
    ...of controverted rights of persons or of property are not properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908)." Syl. pt. 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 (1981). As with most general rules, however,......
  • Request a trial to view additional results
89 cases
  • State ex rel. McKenzie v. Smith, No. 29645.
    • United States
    • Supreme Court of West Virginia
    • June 28, 2002
    ...and is actually in violation of the Workers' Compensation Act.6 569 S.E.2d 818 In Syllabus Point 1 of State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908), this Court established the general doctrine with regard to mootness by Moot questions or abstract propositions, the decision......
  • Israel by Israel v. West Virginia Secondary Schools Activities Com'n, No. 18904
    • United States
    • Supreme Court of West Virginia
    • December 20, 1989
    ...Activities Comm'n v. Oakley, 152 W.Va. 533, 537, 164 S.E.2d 775, 778 (1968), quoting Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 However, we, along with most courts, have tempered the inflexibility of mootness jurisprudence in recent years. In State ex rel. M.......
  • Cooper v. City of Charleston, No. 32612.
    • United States
    • Supreme Court of West Virginia
    • December 1, 2005
    ...of controverted rights of persons or property are not properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908)." Syllabus Point 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 Thornton Cooper, Esq., South Charleston, ......
  • State ex rel. Jeanette H. v. Pancake, No. 27061.
    • United States
    • Supreme Court of West Virginia
    • April 24, 2000
    ...of controverted rights of persons or of property are not properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908)." Syl. pt. 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 (1981). As with most general rules, however,......
  • Request a trial to view additional results

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