Rousseau v. . Bullis

158 S.E. 553, 201 N.C. 12, 1931 N.C. LEXIS 167

• Court: Supreme Court of North Carolina
• Decided: May 20, 1931
• Status: Published

Opinion

Stacy, C. J.

It was conceded on the argument that the electioii which the defendants, in their counter-action, seek to enjoin, was held 5 May, 1931. Hence, as the gravamen of the cross-action, or the act therein sought to be restrained, is now fait accompli, or a fact accomplished, or “water in the mill-tail,” to quote an expressive phrase from the late Chief Justice Hoke, it would serve no useful purpose to moot an academic question. Rasberry v. Hicks, 199 N. C., 702; Glenn v. Cul breth, 197 N. C., 675, 150 S. E., 332; Kilpatrick v. Harvey, 170 N. C., 668, 86 S. E., 596; Sullivan v. Swain, 199 N. C., 819.

Where it appears that the act sought to be enjoined has already been done, the practice of appellate courts is to dismiss the appeal, on the principle that it is not worth while to “lock the stable door after the steed is stolen.”

To illustrate: In Harrison v. New Bern, 148 N. C., 315, 62 S. E., 305, the plaintiff sought to enjoin agents of the defendant city from cutting down a tree. The temporary restraining order was dissolved, and pending the appeal, the tree was cut down. The action was dismissed, as there was nothing upon which an injunction could operate.

Again, in Moore v. Monument Co., 166 N. C., 211, 81 S. E., 170, it was said: “As tbe monument has been erected, the Court will not entertain an appeal to determine the correctness of the ruling dissolving the restraining order.”

Under the authorities cited, the appeal will be dismissed.

Appeal dismissed.