Wallace v. Town Of North Wilkesboro

• Decision Date: 08 January 1910
• Citation: 151 N.C. 614,66 S.E. 657
• Parties: WALLACE. v. TOWN OF NORTH WILKESBORO.
• Court: North Carolina Supreme Court

(151 N.C. 614)

66 S.E. 657

WALLACE.

v.TOWN OF NORTH WILKESBORO.

Supreme Court of North Carolina.

Jan. 8, 1910.

1. Appeal and Error (§ 781*)—Grounds of Appellate Jurisdiction — Existence of Actual Controversy.

Where, pending appeal from the dissolution of a temporary restraining order against a purchase of property by a town, the property is purchased and utilized for the purpose intended, and the purchase is ratified by the Legislature, the appeal will be dismissed.

[E'd. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3122; Dec. Dig. § 781.*]

2. Appeal and Error (§ 803*)—Dismissal-Effect.

The dismissal of an appeal from an interlocutory order dissolving a temporary injunction does not dismiss the case.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 803.*]

Appeal from Superior Court, Wilkes County; Councill, Judge.

Suit by J. V. Wallace against the Town of North Wilkesboro. A temporary restraining order was dissolved, and plaintiff appeals. Appeal dismissed.

Benbow & Caviness, for appellant.

Finley & Hendren, for appellee.

BROWN, J. This is a civil cause, duly instituted by the plaintiff against the defendant town of North Wilkesboro. A temporary restraining order was issued in said cause by Allen, J., restraining the town of North Wilkesboro from purchasing the "Hackett Mill property, " to be used for municipal purposes, in the way of installing a water system and supplying the town with drinking water. The temporary restraining order was heard by W. B. Councill, resident judge of the Thirteenth judicial district, at chambers, in Hickory, N. C, on July 17, 1909, and, after being heard, was dissolved. From such judgment the plaintiff appealed.

It was admitted upon the argument that as soon as the judge below dissolved the restraining order, the defendant commissioners purchased the property, and that the transaction has been completed by the execution of a deed. It is further called to the attention of this court that since the said purchase has been made and the deed executed, the General Assembly of 1909 has ratified and fully confirmed the purchase. Chapter 112, p. 288, § 21, Priv. Laws 1909. As this case is not before us from its merits or upon any issues raised by the pleadings, but only upon an appeal from an interlocutory order, the necessity for the hearing of this appeal has been obviated, since the defendant has accomplished, pending this appeal, the purchase of the Hackett property and the utilization of the same for...