EMRICK v. STATE HWY. COMM'N

EMRICK v. STATE HWY. COMM'N
1931 OK 59
296 P. 412
147 Okla. 252
Case Number: 20343
Decided: 03/03/1931
Supreme Court of Oklahoma

Syllabus

Appeal and Error--Moot Questions not Decided.
¶0 Abstract or hypothetical cases disconnected from granting of actual relief will not be determined by this court.

Error from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by Clarence Emrick and others against the State Highway Commission. Judgment for defendants, and plaintiffs appeal. Dismissed.

Erwin & Erwin, for plaintiffs in error.
Edwin Dabney, Atty. Gen., and Wm. L. Murphy, Asst. Atty. Gen., for defendants in error.

SWINDALL, J.

¶1 This appeal involves a judgment of the district court of Oklahoma county, entered on the 6th day of May, 1929, wherein the plaintiffs in error were plaintiffs, and the defendants in error were defendants. The trial court sustained a demurrer to the petition of plaintiffs in error and dismissed the same at the cost of the plaintiffs, and the plaintiffs have prosecuted this appeal from said order.

¶2 The plaintiffs sought to enjoin the defendants from constructing a certain highway in Lincoln county, designated as project No. 6, prior to the construction of project No. 4, designated in a resolution and proclamation calling an election to vote bonds in Lincoln county, Okla.

¶3 Since this appeal was filed, the defendants in error have filed their motion to dismiss upon the ground and for the reason that project No. 6 has been completed and that the issues involved in the case have become moot. The plaintiffs in error contend that there are certain issues involved in the case relative to the expending of the funds derived from the sale of the Lincoln county bonds which should be settled by the decision of this court.

¶4 Since this cause was briefed this court in Wentz v. Ingenthron, 146 Okla. 165, 294 P. 154, and in No. 21686, Lew Wentz v. Board of County Commissioners of Lincoln County, decided Dec. 23, 1930, 147 Okla. 173, 295 P. 599, has announced the rule as to how the funds raised by the issuing of bonds or by taxation for designated purposes must be used, so we do not deem it necessary to further discuss that issue in this case.

¶5 This court held in Town of Covington v. Coberly, 136 Okla. 20, 275 P. 1064, that:

"Abstract or hypothetical cases, disconnected from the granting of actual relief * * * will not be determined by this court." Citing Albright v. Erickson; 23 Okla. 544, 102 P. 112.

To the same effect is the case of Wallace, County Treasurer, v. McClendon, 144 Okla. 39, 289 P. 354.