Abels v. Turner Trust Co.

MORGAN, J. This action was commenced by appellant for the purpose of procuring an injunction to restrain the sale of property pursuant to an affidavit and notice to the sheriff in a chattel mortgage foreclosure proceeding. A pre [778] liminary injunction was issued and was, upon motion of respondents, dissolved. This appeal is from the order dissolving the injunction. Respondents have moved to dismiss the appeal upon the ground, among others, that the sale, which was temporarily enjoined, has been made since the dissolution of the injunction, and, therefore, no relief can be afforded by a review of the order appealed from even if it resulted in a reversal thereof. In support of their motion respondents have submitted a certified copy of the sheriff’s return in the foreclosure proceeding showing that after the injunction was dissolved the sale was held and the property in question was sold. Appellant insists that since the sheriff’s return of sale is not a part of the record on appeal, a motion to dismiss cannot be based upon it, and that such a motion must, to be entertained, be predicated upon some irregularity in procedure. This court has heretofore, without expressly deciding that it could properly do so, considered facts, as grounds for dismissal, which arose after the entry of the judgment or order appealed from and which were not incorporated in the record on appeal. (Wilson v. Boise City, 7 Ida. 69, 60 Pac. 84; City of Wallace v. Deane, 8 Ida. 344, 69 Pac. 62; Roberts v. Kartzke, 18 Ida. 552, 111 Pac. 1; Coburn v. Thornton, 30 Ida. 347, 164 Pac. 1012.) The doctrine properly applicable to this question of practice is to be found in Sewell v. Johnson, 165 Cal. 762, Ann. Cas. 1915B, 645, 134 Pac. 704, wherein it is said: “The rule that the power of a court to consider on a pending appeal only matters which appear in that record is not of universal application, nor is the court always confined in the consideration and disposition of such appeal to the record therein. On the contrary, matters often arise subsequent to an appeal which may be brought before this court on evidence outside the record, and which will be considered and acted on in disposing of the appeal. A familiar illustration is where, after an appeal from a judgment, a new trial is granted in the [779] superior court, or, when, after appeal, it appears that from some circumstances or fact occurring thereafter its further prosecution involves only a moot question. In both eases, on proper showing necessarily outside the record, this, court will dismiss the appeals.....” (See, also, 4 C. J. 558.) It will be observed from an examination of the Idaho eases above cited that this court will not entertain an appeal when the substance of the controversy between the parties has disappeared and only a moot question remains to be determined. The sole purpose of this appeal is to procure a review and reversal of the order of the trial court dissolving a preliminary injunction. The act sought to be enjoined has now been done, and nothing this court can do, or direct the trial court to do, will alter that fact or result in relief to appellant. The appeal is dismissed. Costs are awarded to respondents. Rice, J., concurs. Budge, C. J., deeming himself disqualified, took no part in the opinion.