Wood, Mayor v. Morrisett

Opinion by RITTENPIOUSE, C. On October 17, 1911, the defendant in error filed his petition in the district court of Oldahoma county, praying for an alternative'writ of mandamus *753 against M. E. Wood, mayor of the city of Edmond, alleging that the city council had allowed certain claims in favor of the defendant in error, and that the warrants had been prepared and signed by the city' clerk, but that the mayor had refused to sign the same. Issues were joined, and upon submission of the cause the court rendered judgment in favor of the defendant in error and the cause was appealed to this court by M. E. Wood, mayor of said city. After the perfection of the appeal, but before final submission, the defendant in error filed a motion to dismiss the appeal on the ground that M. E. Wood had ceased to be mayor of the city of Edmond on the 5th day of May, 1913, and that L. W. Marks had been elected and qualified as mayor of the city of Edmond on said date. No request has been made to have L. W. Marks substituted as plaintiff in error; the contention being that the only matters to be determined are abstract and hypothetical questions. It was held in Ex parte Tinkum, 54 Cal. 201, in construing a statute similar to section 4695, Rev. Laws 1910, that in an action against a public officer, upon his going out of office, his successor does not become a party to the suit, and is not affected by the proceedings, until made a party under the statute. In the instant case the successor has not been made a party, and a judgment against the successor before he is brought into the case would be a nullity. It is therefore apparent that the only matters to be determined are abstract and hypothetical questions and disconnected from the granting of actual relief. Under authority of Bryan v. Sullivan, 20 Okla. 686, 119 Pac. 124, and McCullough et al. v. Gilcrease, 40 Okla. 741, 141 Pac. 5, the appeal should be dismissed. By the Court: It is so ordered.