State ex rel. Schafer v. Gussner
| Decision Date | 17 April 1962 |
| Docket Number | No. 7945,7945 |
| 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. |
| Court | North Dakota Supreme Court |
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.
Sproul, Fitzner & Greffenius, Valley City, and Hjellum, Weiss, Nerison & Ottmar, Jamestown, for appellants.
Jansonius, Fleck, Smith, Mather & Strutz, Bismark, for respondent.
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, but the hearing thereon was not held until June 25, 1957. At that time the school year had been completed, all the spring athletic meets had been held and the boys whose eligibility had been challenged had participated in those meets. The trial court, nevertheless, ordered judgment that a peremptory writ of prohibition issue and the respondent appealed from that judgment. The appeal was heard by this court and decided by an opinion filed September 17, 1958. State ex rel. Schafer v. Gussner et al. (N.D.) 92 N.W.2d 65.
Because the only issue in the proceeding concerned the right of the boys, who had been declared ineligible, to participate in the athletic meets which were held in the spring of 1957, and because the boys had participated in those meets prior to the time of the hearing upon relator's petition, we held that the proceeding had become moot and was moot at the time of the hearing in the district court.
We also pointed out that 'The judicial power vested in the courts of North Dakota, extends only to the determination of actual controversies properly before the court, and does not authorize a court to act in an advisory capacity and to give its opinion on moot questions or abstract propositions.' State ex rel. Schafter v. Gussner, supra, p. 66.
Although we did not say so in the opinion, it would follow,...
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...this action).4 A dismissal predicated on these grounds, however, does not amount to an affirmance of the judgment. State ex rel. Schafer v. Gussner, 114 N.W.2d 707 (N.D.1962). This judgment is always vulnerable to attack in the trial court, Rico Cons. Min. Co. v. Rico Explor. Co., 23 Ariz. ......
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...it would be advisory. The fact that the trial court decided a moot case does not require us to do the same. State ex rel. Schafer v. Gussner et al., 114 N.W.2d 707 (N.D.1962). However, even when technically moot, we will address issues when they are of great public interest and involve the ......
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...v. Humphrey, Mo.App., 362 S.W.2d 92. Under the circumstances presented here, we find what we said in State of North Dakota, ex rel. Harold Schafer v. Gussner, et al., N.D., 114 N.W.2d 707, to be pertinent: 'These issues had ceased to be justiciable at the time they were submitted to the dis......