Holter v. Wagoner

McCOY, J. This action was instituted to enjoin the construction of certain artesian wells under a certain contract made [139] and entered into by and between the municipal officers of Grouse township, Lyman county, and the Norbeck & Nicholson Company, constructors of artesian wells, and also to enjoin the issuance of certain bonds and the creation of indebtedness to pay for the construction of said wells. The said injunction was prayed for on the ground that the procedure on the part of the officers of said township was irregular and void. At the time of the beginning of the action a temporary injunction order was issued, temporarily restraining the construction of said wells and the issuance of said bonds and incurrence of said indebtedness. Thereafter, on the hearing of said cause, the plaintiff’s complaint was dismissed as being without merit, and sai¡¡[ temporary injunction order vacated, and findings and judgment made and rendered in favor of defendants, from which plaintiff appeals. No immediate notice of appeal and undertaking, as provided for by section 454, Code Civ. Proc., to continue in force said temporary injunction, was ever given, and plaintiff appealed without supersedeas undertaking. It further appears that after the vacation of said temporary restraining order the said Norbeck & Nicholson Company proceeded with the construction of said wells, and fully and completely constructed the same, and that the said bonds had been issued and said 'indebtedness incurred in satisfaction and settlement of said contract for the construction of said wells. Motion is now made to dismiss said appeal on the ground that, inasmuch as all the matters and things sought to be restrained and enjoined 'by this action have been done and accomplished, any further action on the part of the court, or that could be accomplished by said appeal, would be futile and of no. avail. AVe are of the opinion that the motion is well grounded, and that the appeal should be dismissed. Appellant contends, that the court should retain the appeal and consider and determine the question of the lawfulness of the procedure in relation to the letting of said contract, and the incurrence of said indebtedness; but we are of the opinion that such procedure and determination on the part of this court would be of no avail and an .idle act so far as the purpose of this action are concerned. What effect it might otherwise have is wholly immaterial. The lawfulness or unlawfulness of such procedure was only material for the purpose of and as a basis for the remedy by’injunction. When the [140] soyght-for remedy of injunction failed and became of no avail under any circumstances in connection with this action, all other incidental matters went down with it. The decision in this case is governed by C., M. & St. P. Ry. v. Commissioners of Sioux Falls, 28 S. D. 471, 134 N. W. 46. The motion to dismiss appeal is granted, and the judgment and order appealed. from affirmed.