Howard v. Happell

Cox, J. The Democratic Central Committee of the city of Jeffersonville elected to nominate the candidates of its party for city offices to be filled at the regular city election in November, 1913, by primary election. Appellee and Orlando Chandler presented themselves as opposing candidates [166] for the nomination for councilman from the second ward. A majority of the election board for the ward, the inspector and one judge, declared and certified that appellee had received a majority of all the votes cast. The other judge certified that appellee’s opponent had received a majority. A canvassing board of three members, appointed pursuant to the plan for holding the primary by appellant, Howard, chairman of the committee, after hearing appellee and his opponent, decided that the latter had received a plurality of all the votes cast in the ward for councilman, declared him the nominee of the party for that office and certified the fact to appellants, the chairman and secretary of the city committee. This action was brought by appellee to compel appellants by mandatory injunction to certify to the city board of election commissioners the name of appellee as the nominee for the office in question and to restrain them from certifying the name of Chandler. A decree for the relief asked was entered and this appeal followed. Several rulings of the trial court are assigned as error. The transcript in this court was filed and errors assigned October 15, 1913, and no motion to advance was made. 1. Appellee has presented a motion to dismiss the appeal. This motion is supported by affidavits by which it is made to appear that after the appeal was taken, and before the ballot for the city election was prepared, appellants complied with the decree by certifying the name of appellee to the city board of election commissioners as the nominee of the Democratic party for the office of councilman for the second ward; that his name was, by the city board of election commissioners, caused to be printed on the official ballot as such candidate; that he was voted for at the general city election on November 4, 1913, and elected and assumed the office without objection and is now acting as such city officer. It thus appears that the questions raised by appellants’ assignment of errors are moot and no more than abstract legal propositions the decision of which could [167] not affect the controversy between parties to the action, or serve any nsefnl purpose. Under such circumstances it is well settled that this court will not decide questions raised on appeal. Gibson v. State (1912), 178 Ind. 315, 99 N. E. 424, and cases there cited. Meyer v. Farmers State Bank (1913), 180 Ind. 483, 103 N. E. 97, and eases there cited The motion to dismiss is, therefore, sustained. Note. — Reported in 103 N. E. 1065. See, also, under (1) 3 Cyc. 188.