Branscome v. Cunduff

96 S.E. 770, 123 Va. 352, 1918 Va. LEXIS 36

• Court: Supreme Court of Virginia
• Decided: September 19, 1918
• Status: Published

Opinion

Kelly, J.,

delivered the opinion- of the court.

On the 4th of October, 1915, Dr. E. L. Branscome, a physician residing and practicing medicine at Laurelfork, in- Carroll county, sold and conveyed his home to Dr. S. A. Cunduff, another physician residing and practicing at that place. The deed expressed a money consideration of $2,250, and contained this further provision: “And for the same consideration the said Dr. E. L. Branscome agrees not to locate again within the radius of fifteen miles of Laurel-fork, Virginia, as a practicing physician.” Branscome moved away, but returned within a year from the date of the deed, took up his residence near Laurelfork, and resumed the practice of his profession. Cunduif thereupon brought this suit for an injunction. The result was a decree of the lower court whereby Dr. Branscome was “perpetually enjoined from practicing medicine and exercising his profession as a practicing physician within a radius of fifteen miles from Laurelfork.” From this decree the present appeal was allowed.

Since the cause was argued and submitted in this court, Dr. Branscome has died. This fact is conceded by counsel representing both parties. The issue upon which the cause came to this court has, therefore, become a purely moot question, and nothing remains for us to do except to enter an order dismissing the case without costs to either party. This is the settled practice in this State and elsewhere generally. Hamer v. Commonwealth, 107 Va. 636, 59 S. E. 400: Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293; Elbon v. Hamrick, 55 W. Va. 236, 46 S. E. 1029; 3 Cyc. 188, sub-sec. 4, and cases cited in note 82; 2 R. C. L., sec. 145, p. 169.

It is insisted by counsel for the appellant that in this particular case the controversy ought to be decided in order to settle the question of costs, the .amount of which is said to be considerable. The authorities above cited are decisively adverse to this contention. As was said by Judge Harrison in Hamer v. Commonwealth, supra, “the controversy in the case at bar having ceased to exist, leaving only moot questions, there can be no recovery for costs in this court, where such a judgment depends upon the substantial result of the litigation. The case'must, therefore, be dismissed without costs to either party.”

Dismissed,.