City of San Antonio v. Brown

SMITH, J. It appears that the question presented in the appeal is moot. Ordinarily, in such case it would be sufficient to dismiss the appeal. To do so in this case, however, would leave the judgment appealed from intact, so that it could be pleaded in future as res adjudicata of the right, authority, and power of the city of San Antonio to legislate by ordinance relative to the use and occupation of public places such as that here involved, to the prejudice of one or both parties. In such cases the better practice seems to be to dismiss the cause from the court below as well as this court. McWhorter v. Northcut, 94 Tex. 86, 58 S. W. 720; Anderson .v. City of San Antonio (Tex. Civ. App.) 26 S.W. (2d) 353. Accordingly, the cause will be dismissed, the costs of appeal to be taxed equally against plaintiffs in errorr and defendants in error.