Opinion
No. 21163
Opinion Filed October 7, 1930.
(Syllabus.)
1. Injunction — Things Already Done not Enjoined.
The court will not entertain an action to enjoin a party from doing that which he has already done.
2. Appeal and Error — Moot Questions.
When a question presented by an appeal has become moot, the appeal will be dismissed.
Error from District Court, Tulsa County; Luther James, Judge.
Action by John H. Maxwell against the City of Tulsa et al. From an order denying an injunction and dismissing plaintiff's action, plaintiff appeals. Dismissed.
G.C. Spillers and Donald Prentice, for plaintiff in error.
Ramsey, De Meules, Martin Logan and Eldon J. Dick, for defendants in error.
This is an appeal from the order and judgment of the district court of Tulsa county made in an action wherein plaintiff in error, as plaintiff, sought a judgment against the defendants enjoining them from paying to the Ryan Motor Company any sums of money for alleged damages suffered by reason of the construction of a union depot in the city of Tulsa and any change in streets and approaches necessarily incident to the construction thereof.
A temporary restraining order was issued thereon, and on the date set for hearing the application for temporary injunction the court sustained defendants' demurrer to plaintiff's petition. An amended petition was filed, to which defendants' demurrer was sustained and the action dismissed. For reversal of this order and judgment, plaintiff, on the 12th day of March, 1930, lodged his appeal in this court.
The defendants have filed their motion to dismiss the appeal upon the ground the question involved has become moot for the reason the defendants have now paid to the Ryan Motor Company all damages awarded to it by reason of construction of a union depot in the city of Tulsa and incident thereto. The motion is supported by affidavit of Earl E. Logan, auditor of the city of Tulsa, attached thereto as an exhibit showing the payment of damages awarded. A copy of the motion with the exhibit was served upon the attorneys for plaintiff September 16, 1930, but no response to the motion has been presented, and we accept the allegations of fact in the motion to be true.
This court has, in a number of cases, announced the rule that the court will not entertain an action to enjoin a party from doing that which he has already done. Goldsmith v. City of Lawton, 136 Okla. 201, 277 P. 230; Youngblood v. Town of Wewoka, 95 Okla. 28, 225 P. 695; Teter v. Board of Ed., City of Drumright, 85 Okla. 16, 204 P. 129.
The question in controversy has become moot and under the rule announced in the authorities above cited, the appeal is dismissed.