Opinion
File No. 7337.
Opinion filed August 15, 1932.
Appeal and Error.
Power to dismiss appeal where controversy no longer exists should be exercised only where it clearly appears that appellate court's judgment would be idle act.
Appeal from Circuit Court, Brookings County; HON.W.W. KNIGHT, Judge.
Suit by the City of Brookings against Charles Martinson. From the judgment in favor of defendant, plaintiff appeals. On motion to dismiss the appeal. Motion denied.
Walter M. Cheever and Herbert E. Cheever, both of Brookings, for Appellant.
B.H. Schaphorst, of Brookings, for Respondent.
Respondent above named has moved to dismiss the appeal herein upon the grounds that all questions involved have become moot.
Conceding that an appeal should be dismissed when the controversy between the parties has ceased to exist, and there is no subject-matter upon which the judgment of the appellate court could operate (Dickson v. Lord, 58 S.D. 643, 238 N.W. 21), and where the only judgment which could be rendered by the appellate court would be ineffectual for any purpose (Chicago, M. St. P.R. Co. v. Commissioners, 28 S.D. 471, 134 N.W. 46), yet such power should be cautiously exercised and should be employed only in those cases where it appears clearly and beyond controversy that a judgment of the appellate court would be an idle act so far as concerns any rights involved in the litigation (Smith v. Lyle, 54 S.D. 385, 223 N.W. 318; State ex rel Coolsoet v. City of Veblen, 56 S.D. 394, 228 N.W. 802).
Without reciting the facts or the contentions of the parties on this motion, it is sufficient to say that we are not fully persuaded that such situation exists in the instant case, and we are consequently of the opinion that the case ought not to be disposed of on a summary motion for dismissal of the appeal. The motion is therefore denied.
WARREN and RUDOLPH, JJ., concur.
POLLEY and ROBERTS, JJ., absent and not participating.