Beaty v. Doughty, No. 22,929

No. 22,929 | Kan. | Mar 12, 1921

The opinion of the court was delivered by

Mason, J.:

John S. Beaty was one of a number of persons owning a rural telephone line which connected with the central at Piedmont. Each of them paid a service fee amounting to 33 Ví-j-cents a month as a switchboard charge. In the latter part of 1917, and especially during December of that year, Beaty complained that the service was very poor and threatened to refuse payment unless the trouble should be remedied. In January, 1918, the service became in his judgment so bad that he refused to pay his 33Y$ cents for that month. He had already paid up to and including December and offered to pay from the first of February. Because of his continued' refusal to make the payment for January he was cut off from the connection and a portion of his line was removed by the action of his associates. He brought suit for a mandatory injunction to require the reestablishment of his connection and obtained a judgment from which this appeal is taken.

The plaintiff has made a showing in this court that since the appeal was taken he has sold the property which the line served and moved out of the neighborhood. Upon the ground that the proceeding has therefore become moot he has filed a motion for the dismissal of the appeal. In this situation a decision on the merits could accomplish no practical purpose. If the judgment has not been executed there is no purpose in now ordering its enforcement. If it has been performed there is no occasion for undoing what has been done. A dismissal is clearly indicated. (Bauman v. Mason, 91 Kan. 728" court="Kan." date_filed="1914-03-07" href="https://app.midpage.ai/document/bauman-v-mason-7901868?utm_source=webapp" opinion_id="7901868">91 Kan. 728, 139 Pac. 406.) Irrespective of the disposition of the case, however, this court has full discretion in the taxing of the costs of the appeal (Gen. Stat. 1915, § 7487), including the expense of the transcript. (Gordon v. Munn, 83 Kan. 642, 112 Pac. 615.) The suit appears to have been brought rather on account of personal ill feeling than because of the controversy over the payment of thirty odd cents, or for the settlement of an. important principle. At its best it was an unneighborly proceeding in the attempted vindication of a technical right. Because of these considerations, while the appeal is dismissed, the. costs will be taxed to the plaintiff.