Sorensen v. Coddington

California Court of Appeal Aug 20, 1926 No. Docket No. 5642.Published

Before: Knight

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Holding. The court dismissed the appeal as moot because the underlying execution sale had been annulled by the trial court and the property returned to the appellant, rendering any decision on the merits ineffectual.

Issues

Whether an appeal becomes moot when the appellant has obtained the relief sought through a subsequent trial court order.
Whether the potential liability for costs of appeal prevents the dismissal of an appeal that has otherwise become moot.

Disposition. dismissed

Quotations verified verbatim against the opinion

“an appeal will be dismissed where all the questions involved in it have become moot and abstract or where, because of the happening of some event, a decision would be ineffectual and could serve no useful purpose”

“The mere fact that liability for costs of appeal may be involved does not affect this conclusion.”

[200]

KNIGHT, J.

Three motions are presented herein for determination, each arising out of an appeal taken by C. Martin from an order denying his motion to set aside an execution sale of personal property which had been seized by the sheriff while in the possession of Martin as lessee thereof and sold to the firm of Feigenberg Bros, and one Bercovich, pursuant to a writ of execution issued in an action brought by E. Sorensen against C. H. Coddington, Martin’s lessor. The purchasers at said sale and the plaintiff in the action now present separate motions for the dismissal of said appeal, and Martin has moved that said appeal be forthwith submitted for decision and that the order appealed from be reversed. All three motions are based upon the same ground, namely, that the issues involved in said appeal have become moot.

The essential facts are as follows: Sorensen commenced an action against Coddington to recover upon a promissory note and upon two assigned claims for the sale of merchandise. An attachment was issued and levied upon certain real property belonging to Coddington. Judgment by default was entered, grounded upon constructive service of summons, Coddington being at the time a nonresident of the state. Thereupon a writ of execution issued and was levied upon certain personal property belonging to Coddington, which at the time of the levy was in possession of and under lease to Martin. Feigenberg Bros, and Bercovich became the purchasers at the execution sale. Thereafter Martin commenced an action against the purchasers to recover the possession of said personal property or its value and damages for its detention, claiming that the judgment against Coddington and the subsequent proceedings taken under execution were void. Judgment in that action was entered on December 10, 1925, in favor of the defendants therein, and according to the averments in one of the affidavits on file herein was based upon the ground that Martin’s conduct, which the court held amounted to a consent to such sale, estopped him from challenging the validity thereof. Martin appealed from said judgment, and that appeal is now pending hearing before the supreme court.

After the rendition of said adverse judgment and the taking of an appeal therefrom, Martin, although not a party to the action of

Sorensen

Sorensen v. Coddington

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KNIGHT, J.

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