115 So. 128 | La. | 1927
This is a suit for an injunction to prevent the commission council of New Orleans from accepting bids for certain paving certificates and from accepting and carrying out a contract for the paving of South Claiborne avenue from Canal street to Poydras street. The suit was filed in April, 1924, and it was alleged in the petition that the bids would be accepted and the contract forthwith carried out unless a writ of injunction should issue. The only relief prayed for was that the city should be ordered to show cause why a temporary *1014 injunction should not issue, and that, after trial, the injunction should be perpetuated. The city, answering the rule to show cause why the injunction should not issue, pleaded that the petition did not disclose a cause or right of action. The plea was maintained, and the plaintiff appealed. The city has moved to dismiss the appeal on the ground (1) that the bids were accepted and the contract was made and carried out, as the plaintiff alleged would be done if the injunction did not issue; (2) that three annual installments of the paving charges against the plaintiff's property, for the paving done under the contract, have been paid; and (3) that the plaintiff has since sold his property on South Claiborne avenue and therefore has now no interest in this suit. The motion to dismiss is supported by the official certificates (1) of the commissioner of public property; (2) of the commissioner of public finances; and (3) of the recorder of conveyances.
As this court cannot receive evidence originally, except to determine questions of jurisdiction, we would remand this case for proof of the allegations of the motion to dismiss, but for the fact that the record itself shows — by the allegations of the plaintiff's petition — that it is now too late for the court to grant him the relief which he prayed for. He alleged — and we have no doubt it was true — that the bids were then about to be accepted, and that the contract was about to be let and executed, and that the bids would in fact be accepted, and that the contract would be forthwith let and executed if the injunction did not issue. His appeal from the judgment denying him the relief has remained on the docket of this court over three years, without any motion being made to advance it to the summary docket to be heard promptly. His attorney has not filed a brief or otherwise opposed the motion to dismiss. It is obvious that *1015 the acts which he sought to prevent by an injunction have been performed, and that the relief which he prayed for is not now available.
The appeal is dismissed.