PERDUE v. SAPP

PERDUE v. SAPP
1951 OK 312
239 P.2d 387
205 Okla. 529
Case Number: 35060
Decided: 11/13/1951
Supreme Court of Oklahoma

(Syllabus.)

¶0 APPEAL AND ERROR - Appeal dismissed when question presented has become moot. When the question presented by an appeal has become moot, the appeal will be dismissed.

Appeal from District Court, Kingfisher County; F.B.H. Spellman, Judge.

Action by Francis H. Perdue against Clyde Sapp to determine the right to the office of Kingfisher County. From an order and judgment of the trial court dismissing the action, plaintiff appeals. Dismissed.

Karl D. Cunningham, Kingfisher, and Frank Carter, of Otjen & Carter, Enid, for plaintiff in error.

Louis V. Woodruff, Kingfisher, for defendant in error.

PER CURIAM.

¶1 Francis H. Perdue filed an application before the county election board of Kingfisher county to contest the election for the office of sheriff. The election board decided the contest against him and he appealed to the district court. The district court affirmed the order of the county election board and Perdue attempted to appeal to this court, and in Perdue v. Sapp, 205 Okla. 40, 233 P.2d 973, the case was dismissed.

¶2 Plaintiff also commenced this action in the nature of quo warranto in the district court of Kingfisher county, and upon motion of defendant the trial court dismissed the action for the reason that the issues involved had been determined in the prior case and plaintiff lodged this appeal from the final order made therein and both cases were pending in this court when the opinion in Perdue v. Sapp, supra, was rendered.

¶3 In Perdue v. Sapp, supra, this court determined that 26 O.S. 1941 § 392 provided the exclusive remedy for the contest of the county office of sheriff and that there was no appeal from the final order of the district court passing upon the action of the county election board. Such was the decision of the trial court in the base at bar. Since the only issue presented in this proceeding was finally determined in Perdue v. Sapp, supra, the question presented has become moot.

¶4 In Harden v. Morris, 198 Okla. 398, 179 P.2d 144, we stated:

"When the question presented by an appeal has become moot, the appeal will be dismissed."

¶5 Appeal dismissed.

¶6 ARNOLD, C.J., HALLEY, V.C.J., and WELCH, CORN, GIBSON, JOHNSON, O'NEAL, and BINGAMAN, JJ., concur.