185 N.W. 305 | N.D. | 1921
This is an action instituted by the state’s attorney of Ramsey county, under the provisions of chap. 97, Laws 1921, to condemn and forfeit one certain Buick automobile. The complaint alleges that on the 25th day of March, 1921, a criminal information was filed in the district court of Ramsey county against Leslie Anderson and C. E. Story, charging them with the crime of willfully and unlawfully transporting intoxicating liquors, to wit, whisky, within said county by means of an automobile described as one Buick Six, seven-passenger automobile, 1920
This action was instituted on the 8th day of April, 1921. It appears-that on April 2, 1921, Flynn, Traynor & Traynor instituted an action in a justice court in Ramsey county against Grace Benson, C. E. Story, and Leslie Anderson, as defendants, to recover the sum of $75. On the same day an affidavit for attachment, accompanied by a proper undertaking, was filed, and the justice of the peace before whom the action was pending issued a writ of attachment. The papers in said action in justice court were delivered to the sheriff of said county for service, and the sheriff served the papers upon the three defendants named therein and also levied upon the Buick car, which is involved in this controversy. Such proceedings were had in the justice court that on the 16th day of April,. [921, a judgment was rendered in favor of the plaintiff in said action and against the three defendants in the total sum of $94.80. On the 27th day of April, 1921, an execution was issued upon said judgment and delivered to the sheriff of said county for service. The sheriff, pursuant to the directions of said execution, caused notice of sale to be given wherein he advertised that he would sell said automobile, on the 7th day of May, 1921, at the place provided by law, to satisfy the-judgment. The state’s attorney of Ramsey county thereupon, on May 4, 1921, moved the court for an order enjoining and restraining the said execution sale set for May 7, 1921. The motion was based upon an affidavit of said state’s at
“That said execution sale be enjoined and restrained by order of this court, and that the said judgment creditor be brought in as a party defendant in the above-entitled action, so that the right of the state in and to said automobile in said forfeiture proceedings be adjudicated as against ■the levy and threatened sale of said judgment creditor, and, further, that the rights of all claimants therein may be adjudicated as provided by statute.”
At the hearing the records and files in the criminal action and in this action were submitted, and it appears by recital in the order appealed from that the trial court also considered all the records and files in the case in which the execution was issued. The trial court denied the application for an injunction. In its order the court, however, provided:
“That when the sale is made under and by virtue of the execution ■issued out of justice court in the action wherein said Flynn, Traynor & Traynor are plaintiffs and the said Grace E. Benson is the defendant .and judgment debtor, that such sale be made without prejudice to the rights of the state of North Dakota in and to said automobile and subject to all of the rights and equities of the state of North Dakota in and to said automobile, which rights and equities are to be determined in this action, and that upon such sale the purchaser at such sale shall take the said automobile subject to the rights of the state of North Dakota as may be finally determined in this action, and said automobile shall remain in the possession of the sheriff of Ramsey county, N. D., to abide the final determination of the rights of the state of North Dakota in this action.” And “that at the time of such sale and before the sale is made that the sheriff, after reading the notice of sheriff’s execution sale, shall read this order and announce that said sale is being made subject to the provisions hereof.”
The states attorney has appealed from that order .
On this appeal many questions have been raised relating to the construction of chap. 97, Daws 1921. In our opinion the case neither requires nor justifies consideration of any of these questions. It will be noted that the order of the trial court carefully preserved all the right^ of the state, and left all questions involving these rights, as well as the rights of
There is another reason why we may not consider the various questions urged for determination here. No restraining order was ever issued by the trial court, and no order was made staying proceedings pending the appeal. And in the record which the appellant has caused to be certified to this court on this appeal, there is contained the return which the sheriff made on the execution issued upon the justice’s judgment; and from that return it appears that the sheriff, on May 7, 1921, held the execution sale in accordance with the directions of the execution and the provisions of the order appealed from here. In other words, the record presented by the appellant shows affirmatively that before the appeal was taken the very acts which it was sought to have restrained had been performed. Hence the appeal presents merely, questions which have become moot, and is subject to dismissal. Thompson v. Vold, 38 N. D. 569, 165 N. W. 1076; Holter v. Wagoner, 32 S. D. 137, 142 N. W. 175; Barber Asphalt Co. v. Hamilton, 80 Wash. 51, 141 Pac. 199; Carr v. Montesano, 76 Wash. 380, 136 Pac. 363; Wiebke v. Ft. Wayne, 64 Ind. App. 38, 115 N. E. 355; Crise v. Slagle, 129 Md. 453, 99 Atl. 669; 4 C. J. 584. See, also, State v. Albertson, 25 N. D. 206, 141 N. W. 478; In re Kaeppler, 7 N. D. 307, 75 N. W. 253; Richardson v. McChesney, 218 U. S. 487, 31 Sup. Ct. 43, 54 L. ed. 1121; Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. ed. 293.
It follows from what has been said that we cannot interfere with the order entered by the trial court, and it is affirmed.
