Tabor v. Hipp

Holden, J. Certain parties, alleging themselves to be the duly constituted registrars of Gilmer county, sought a writ of mandamus against the ordinary of that county to compel him to deliver to them certain'books and documents for use in connection with their official work as registrars. Upon the trial the court directed a verdict in favor of the registrars, and entered thereon the mandamus as prayed for. The ordinary made a motion for a new trial, and asked for a supersedeas, which the court denied. Various exceptions pendente lite were made to rulings and decisions of the court, and error assigned thereon in the bill of exceptions; but a consideration thereof is not material, in view of the direction which this court deems it proper to give the case. Upon the hearing of the motion for a new trial the court refused the same, [124] and the defendant excepted to this order. • In the order the court gave as one of his reasons for denying a new trial, that when the motion was heard the ordinary had fully complied with the writ of mandamus by turning over the books and documents in question to the registrars, who had completed their work and returned all of such books and documents to the ordinary. Under this state of facts, it is apparent that there is now no existing controversy between the parties to which any decision rendered by this court on the questions involved would have any practical application. Were we to hold that the court erred in refusing the mandamus and send the case back to the lower court to act accordingly, any order which the latter court might hereafter grant could not, in this case, be of any practical benefit to the ordinary, who, in compliance with the mandamus absolute, delivered the books and documents as therein directed to the registrars, who, before the bill of exceptions was filed, had completed the use for which they were obtained and had returned them to the ordinary. A reversal of the judgment of the court below would give the ordinary no effective relief in this case. The controversy between the parties as to their rights has ceased to exist, and there is no subject-matter upon ‘which a judgment of this court could operate. The ordinary has lost no rights of property which could be restored to him in ease of reversal. It is not the policy of our jurisprudence with respect to litigated cases to decide questions which have ceased to be an issue by reason of facts having intervened rendering their decision of no practical application to the controversy between the litigants. This is the rule to which this court has adhered in injunction cases. Baird v. Atlanta, 131 Ga. 451 (62 S. E. 525); Davis v. Mayor &c. of Jasper, 119 Ga. 57 (45 S. E. 724). We see no reason why the rule is not equally applicable to writs of mandamus, as has been held by a number of courts of other jurisdictions. Norwood v. Clem, 143 Ala. 556 (39 So. 214, 5 Am. & Eng. Ann. Cases, 625, and note); Betts v. State, 67 Neb. 202 (93 N. W. 167, 2 Am. & Eng. Ann. Cases, 625, and note); 26 Cyc. 509; 13 Enc. Pl. & Pr. 832. If the costs of the litigation will fall on the ordinary as the losing party, this fact would not afford a sufficient reason why the court should decide the questions raised in the mandamus proceedings. It appears from the record that the ordinary, after having failed to obtain a supersedeas, on his [125] own motion had the hearing on his application for a new trial continued from time to time until the date it was heard, at a time when a decision in his favor would be nugatory as to any rights he had in resisting the mandamus. If he is liable for costs, he can not insist on a right to a decision merely to determine the issue upon which of the parties to the litigation the costs shall devolve. See 4 Am. & Eng. Enc. Law & Prac., p. 36, g, and authorities cited.in notes; Chamberlain v. MacVickar (Iowa), 76 N. W. 839; State v. Richmond & D. R. Co., 74 N. C. 287; State v. Meacham, 17 Wash. 429 (50 Pac. 52); Moores v. Moores, 36 Or. 261 (59 Pac. 327). Writ of error dismissed. Fish, G. J., absent. The other Justices concur.