State ex rel. Thompson v. Simmons, 9328
| Decision Date | 12 September 1973 |
| Docket Number | No. 9328,9328 |
| Citation | 499 S.W.2d 819 |
| Parties | STATE of Missouri ex rel. J. L. THOMPSON, Relator, v. Larry Lee SIMMONS, County Clerk of Oregon County, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
John C. Holstein, Richard D. Moore, Moore & Brill, West Plains, fopr relator.
Ray Lee Caskey, Pros. Atty., Alton, for respondent.
This proceeding was instituted in the Circuit Court of Oregon County on May 2, 1972, by the filing of relator J. L. Thompson's petition in which he sought a writ of mandamus commanding Larry Lee Simmons, County Clerk of Oregon County, to accept relator's declaration of candidacy for the office of Sheriff of that county. On that date, an alternative writ of mandamus was issued and served, to which the County Clerk filed his return on May 24, 1972; and, on the issues thereafter joined by relator's answer, evidence was taken and the parties were accorded a plenary hearing on June 2, 1972, at the conclusion of which the alternative writ was made peremptory.
The litigated issue, upon which both parties adduced evidence, was whether or not relator, who had lived in Oregon County prior to 1955 but continuously thereafter had served in the United States Navy although frequently returning to Oregon County on visits, voting there either by absentee ballot or in person, and paying 1969 and 1970 taxes on real estate in Oregon County (but no taxes on personal property), was eligible for the office of Sheriff of Oregon County. This issue of eligibility vel non was determinable under § 57.010, RSMo 1969, V.A.M.S. which requires that the sheriff in any county in this state 'shall be a resident taxpayer and elector of said county (and) shall have resided in said county for more than one whole year next before filing for said office . . ..' In refusing relator's declaration of candidacy, the County Clerk followed the counsel of his legal adviser, the Prosecuting Attorney of Oregon County, who in turn had talked with the Attorney-General's office. Finding that 'the statutes of the state . . . are ambiguous,' the trial court resolved such 'ambiguity' in favor of relator, ordered the County Clerk to accept relator's declaration of candidacy and 'cause his name to the placed upon the ballot for the August (1972) Primary as a candidate for Sheriff,' and in discussing the court's ruling 'storngly suggest(ed) that (the County Clerk) consider an appeal.'
The fact that the resulting appeal, here under consideration, was neither submissible nor submitted prior to August 8, 1972, which we judicially know to have been the date of 'the August (1972) Primary' (§ 120.310, RSMo 1969), immediately suggests that the issue presented to and ruled by the trial court has become moot. 'A question is moot when the question presented for decision seeks a judgment upon some matter which if judgment were rendered could not have any practical effect upon any then existing controversy.' Preisler v. Doherty, 364 Mo. 596, 602, 265 S.W.2d 404, 407(4) (banc 1954); Waterman v. City of Independence, 446 S.W.2d 471, 475(6) (Mo.App. 1969). See State ex rel. Cervantes v. Bloom, 485 S.W.2d 446, 448 (Mo.App. 1972).
For the purpose of determining the moot character of a case before us, we may notice...
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...not the cause is moot. State ex rel. Donnell v. Searcy, 347 Mo. 1052, 1059, 152 S.W.2d 8, 10(2) (banc 1941); State ex rel. Thompson v. Simmons, 499 S.W.2d 819, 820(1) (Mo.App.1973). To our considerable chagrin we find that the cause out of which this action arose has been tried upon the mer......
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