State ex rel. Schafer v. Gussner, 7945

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: BURKE; SATHRE
• Citation: 114 N.W.2d 707
• Parties: STATE of North Dakota, ex rel. Harold SCHAFER, Relator and Respondent, v. W. S. GUSSNER, E. S. Killie, K. L. Zenner, L. T. Havig, J. E. Slatta, R. C. Arveson, K. L. Rue, M. F. Peterson, and Earl Abrahamson, constituting the Board of Directors and Executive Secretary of the North Dakota High School Activities Association, and T. E. Simle, W. S. Gussner and Hamilton G. Vasey, Superintendents of the Bismarck, Jamestown and Fargo Schools respectively, Respondents and Appellants.
• Docket Number: No. 7945,7945
• Decision Date: 17 April 1962

Page 707

114 N.W.2d 707 STATE of North Dakota, ex rel. Harold SCHAFER, Relator and
Respondent,
v.
W. S. GUSSNER, E. S. Killie, K. L. Zenner, L. T. Havig, J.
E. Slatta, R. C. Arveson, K. L. Rue, M. F. Peterson, and
Earl Abrahamson, constituting the Board of Directors and
Executive Secretary of the North Dakota High School
Activities Association, and T. E. Simle, W. S. Gussner and
Hamilton G. Vasey, Superintendents of the Bismarck,
Jamestown and Fargo Schools respectively, Respondents and
Appellants. No. 7945. Supreme Court of North Dakota. April 17, 1962.

Syllabus by the Court

1. The judicial power, vested in the courts of North Dakota, extends only to the determination of actual controversies and does not authorize a court to act in an advisory capacity and to give its opinion upon moot questions or abstract propositions.

2. Where a decision is given, in a case, upon issues which had become moot, prior to the trial of the case, the decision is in excess of the trial court's jurisdiction.

3. Ordinarily where a district court had jurisdiction to enter a judgment from which an appeal has been taken and the appellate procedure has been sufficient to confer jurisdiction of the appeal upon the appellate court, a dismissal of the appeal amounts to an affirmance of the judgment.

4. Where an appellate court dismisses an appeal upon the ground that it has no jurisdiction of the appeal or upon the ground that neither the district court or appellate court had jurisdiction of the subject matter, such a dismissal does not affirm the judgment from which the appeal has been attempted.

5. Where a judgment has been entered, in excess of the court's jurisdiction, it should be set aside upon motion.

Page 708

Sproul, Fitzner & Greffenius, Valley City, and Hjellum, Weiss, Nerison & Ottmar, Jamestown, for appellants.

Jansonius, Fleck, Smith, Mather & Strutz, Bismark, for respondent.

BURKE, Judge.

In the spring of 1957, the Board of Directors of the North Dakota High School Activities Association declared certain high school boys ineligible to participate in high school athletics for the balance of the school year of 1957, because of their participation in a DeMolay Basketball Tournament in April 1957. On May 27, 1957, the relator instituted this proceeding upon a petition and supporting affidavit and, ex parte, secured from the District Court of Burleigh County a temporary order, restraining the Board and the other named defendants from enforcing their ruling, and an order requiring the defendants to show cause why the temporary restraining order should not be made permanent. The order to show cause was returnable on June 18, 1957,...