Milne v. Capital City Gas Co.

276 A.2d 632 | Vt. | 1971

Per Curiam.

Plaintiff-appellant brought a petition for declaratory judgment to have gas service restored to his residence. The court ordered defendant to install a “twenty-five cents meter.” The defendant complied with the order. It then filed a motion to dismiss the petition on the ground that plaintiff had a good and sufficient remedy at law.

On hearing, the petitioner requested the court to allow defendant’s motion to dismiss. Subsequently, the court, as requested by the plaintiff, ordered his petition for declaratory judgment dismissed. The case is here on plaintiff’s appeal from this order.

The defendant filed a motion to dismiss the appeal to this Court on the ground that plaintiff’s petition for declaratory judgment was dismissed by the court below at plaintiff’s request. The record shows this course of conduct to be the fact. This situation clearly establishes that the judgment order neither prejudiced the rights of the plaintiff nor injuriously affected him in any manner. It is said in 4 Am.Jur.2d Appeal and Error § 184, at 693-94, “[o]ne may not appeal from a judgment, order or decree in his favor by which he is not injuriously affected.” In Thompson v. Smith, 119 Vt. 488, 511, 129 A.2d 638 (1956), we held that “A party may not appeal from a decree in his favor for the purpose of obtaining a review of a finding he deems erroneous which is not necessary to support any part of the decree made by the chancellor.” The plaintiff cannot now be heard to complain since the chancellor adopted the course of action requested, and agreed to, by the plaintiff.

Moreover, the dismissal of plaintiff’s petition by the chancellor rendered moot any other questions on which an attempt was being made to obtain a decision. We have repeatedly refused to entertain moot cases. Mangan’s Admx. v. Smith, 116 Vt. 401, 403, 78 A.2d 12 (1951).

Appeal dismissed.