Territory of New Mexico ex rel. Hubbell v. Dame

OPINION OP THE COURT. POPE, J. (After stating the case.) — Upon the-state of facts above outlined, a number of questions are-argued at the bar and in the briefs of counsel. 1 2 3 Among these are whether the court below had the-power upon the pleadings and aided only by judicial notice to make the findings of fact contained in the record, or, indeed, any findings at all; whether the governor of New Mexico had the power to remove the relator and to appoint Armijo in his stead; whether the clerk, being an arm of the court, is subject to mandamus; and whether a court will, pending a dispute as to an office, issue mandamus to enforce recognition of the de facto officer. We find it unnecessary to decide any of these questions for the reason that even were they to be decided as contended for by appellants and the cause reversed, the status of the case has been so changed pending this appeal that it would be impossible upon a new hearing to grant appellants an effectual relief. No rule of practice is better settled than that when pending an appeal an event occurs without fault of appellee which renders it impossible for the court, should its decision be favorable to the appellant, to grant him any effectual relief whatever, the court upon that fact being brought to its knowledge will not proceed to formal judgment but will dismiss the appeal. Jones v. Montague, 194 U. S. 147 ; Mills v. Green, 159 U. S. 53; Kimball v. Kimball 174 U. S. 163; Tennessee v. Condon 189 U. S. 69. It appears from the records of this court in cause 1133 and the arguments and briefs in this case that the appellant, Hubbell, has since the decision below instituted proceedings in the nature of quo warranto to test the title of Armijo to the office in question. The underlying theory of such a suit is that the office contended for is in the adverse possession of the party proceeded against; or, in other words, that while the relator moving in such suit considered himself' the de jure officer, his adversary is the de facto officer. Such a suit admits the relator therein to be out of office. This was distinctly held by this court in Conklin v. Cunningham, 7 N. M. 445, where the fact that Conklin had instituted quo warranto against Cunningham was held to be a conclusive admission that Cunningham was the de facto officer and entitled to all of the rights flowing from such occupancy.' With the law as thus declared in Conklin v. Cunningham, we have no dispute, nor apparently has appellant, for in his petition in the prohibition case No. 1112, now pending before us, he distinctly avers that “He cannot institute proceedings in quo warranto without abandoning his said office and waiving his rights as de facto sheriff.” (Record p. 13). We deem it sufficient, therefore, to point out that by instituting quo wmranto appellant has abandoned the possession of the office and has surrendered any point of vantage he might have as de facto sheriff. Were the cause reversed there could be no effectual relief granted him. Certainly, the clerk could not be ordered to deliver to him the venires for the September, 1905, term of court for the time for the service of these has long since expired. Neither could the clerk be ordered to deliver to him further process requiring service by the sheriff’s office for the reason that he is confessedly no longer in possession oP that office, or 'its books or paraphernalia. How, for example, could commitments for prisoners be attended to by relator when the jail to which they are to be committed is in the hands of another? Indeed, the whole theory upon which this suit is predicated, is that the relator, Hubbell, as de facto officer is entitled to be maintained in the possession of the office by mandamus. The gist of the contention is not that he is entitled to prosecute these proceedings as the de jure officer, for that question is confessedly one for quo warranto; but that he is the de facto officer in full possession of the office. When, therefore, as admitted by his filing quo warranto, relator surrendered the office and ceased to be the officer de facto the whole basis of his several contentions slipped away from him and even upon his own argument left no foundation upon which the court upon a reversal of the case could grant him any relief. His election to abandon the possession of the office and to proceed by quo imrranto was, to again quote his own language, a waiver of ‘fins rights as de facto sheriff;” feeling, therefore, that a reversal of this case could result in no substantial relief to relator for the reason that the changed status of the matter has left the case where a determination of the questions involved would be a mere moot decision bv this court; we are of opinion that the appeal should be dismissed. By this direction given the matter we do not desire to be understood as receding from the views expressed in Albright v. Territory, 79 Pac. 719, wherein we declined to dismiss an appeal where the term of office had expired pending such appeal, upon .the ground that in quo .warranto the proceeding was one involving more than the mere right to hold the office. In the present case we do not conceive that either the findings of the court of which complaint is made, nor the judgment quashing the writ will be of the slightest relevancy upon any proceeding- directly involving the title to the office in controversy. The present disposition of the matter, therefore, does not leave the appellant burdened with any adjudication that will affect the quo warranto proceeding to which he has taken recourse. The appeal is accordingly dismissed. William J. Mills, C. J., John R. McFie, A. J., Edward A. Mann, A. J., concur. Abbott, A. J., having tried the case below, did not participate in this decision.