#### Ohio River Contract Company v. Pennybacher.

(Decided January 25, 1916.)

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).

1. Appeal and Error — Dismissal—Section 757 Civil Code. — Under section 757 of.the'Ciyil Code of Practice, if it be made to appear that the appellant’s ' right to prosecute his appeal has ceased, .'the appellee may,' u¿oh stating the ground's in writing, have the appeal dismissed. ■

*792. Appeal and Error — Dismissal.—Where, pending the appeal, conditions have arisen that would make the judgment on appeal of no effect, it will be dismissed.

3. Appeal and Error — Dismissal.—Where the appellant compromised the judgment against him after the appeal was taken, the appeal' will be dismissed upon motion made under section 757 of the Code.

DALLAM, FARNSLEY & MEANS for appellant.

ROBERT LEE PAGE for appellee.

Opinion of the Court by

Chief Justice Miller—

Dismissing appeal.

PennybacRer recovered a judgment for $1,750.00 damages against tRe ORio River Contract Company, and tRe company appealed.

Robert Lee Page, attorney for tRe appellee, Ras filed Ris affidavit in this court,- stating tliat tlie appellant Ras compromised and settled said judgment witR Penny-bacRer since tlie appeal was taken, and tRat tRe appeal is not prosecuted in good faitR, because PennybacRer Ras no furtRer claim or interest in tRis action. Accordingly, Re moves to dismiss tRe appeal under section 757 of tRe Civil Code.

Appellant objects to a dismissal of its appeal, and files tRe affidavit of its attorney sliowing tliat it Rad compromised tRe case since tlie appeal was taken, by paying PennybacRer $450.00; tliat for several weeks before tRe settlement was made PennybacRer was constantly asking appellant to compromise tRe case, and tRat Mr. Page, altRougR Re at first declined to agree to any compromise, finally agreed, on November 20tli, 1915, to accept $600.00 in full settlement of Ris fee in tlie case, witR tlie understanding tRat PennybacRer was to get $450.00; and tliat Mr. Page was given a check for $600.00 for Ris fee, but Re returned it tlie next day, saying tliat after due consideration Re Rad decided not to accept it.

Section 757 of tRe Code of Practice provides, in part, as follows:

> £ ‘ If it appear from tRe record tRat an appeal was improperly granted, or tRat tlie appellant’s riglit to prosecute it furtRer Ras ceased, tRe appellee may, upon stating tRe grounds in writing, move tRe court to dismiss tRe appeal. ’ ’

Section 758 of tRe Code furtRer provides:

> *80“If the facts mentioned in section 757 he not shown by the record, the appellee may plead them by a verified answer, to which the appellant may file a verified reply; and the questions of law or fact thereon shall he heard and determined by the court on or after the day on which the case is set for trial on the docket.”

Appellant insists that notwithstanding the compromise, it yet has the right to litigate the question as to whether appellee has a cause of action against it; while appellee’s attorney insists there is now no action pending between the parties, and that the question which the appellant proposes to litigate is merely a moot question.

.It is true that section 757, as amended by the Act of 1888, further provides that when a party recovers judgment'for only a part of the demand or property he sues for, the enforcement -of such judgment shall not prevent him from prosecuting an appeal therefrom as to so much of the demand or property sued for as he did not recover. But the case at bar does not come within the provision of the Code, since the plaintiff is not appealing. Neither is this case controlled by the decision in Nashville C. & St. L. R. Co. v. Bean’s Exr., 128 Ky., 758, where the judgment was paid by the appellant without a compromise or settlement of the case, and the appellant still had the right of restoration in case of a reversal. In that .case there was no settlement or compromise of the cause of action as here. 3 C. J., p. 675, Little v. Bowers, 134 U. S., 547.

If appellant’s position be correct, and the judgment should be reversed, there would be nothing to try upon the return of the case to the circuit court, since the settlement would be a bar to the further prosecution of the action. A reversal would accomplish nothing; an affirmance would benefit nobody.

The courts do not try academic questions where neither party will be affected by the result.

So, where, pending the -appeal, conditions have arisen that would.make the judgment on appeal of no effect, it will be dismissed. King v. Tilford, 24 Ky. L. R., 1270, 70 S. W., 1064; Conn v. Desha, 24 Ky. L. R., 1400, 71 S. W., 519; Finley v. Smith, 28 Ky. L. R., 564, 89 S. W., 547; Waller v. Henderson Tel. Co., 31 Ky. L. R., 39, 101 S. W., 372; Haggin v. Montague, 125 Ky., 507; Harney v. Fayette County Fiscal Court, 130 Ky., 247.

*81Here it is conceded by appellant that a compromise has been effected; and the question having been raised by affidavits, they will, under the circumstances, be treated as sufficient pleadings under the Code, *supra,*in the absence of any objection.

Appeal dismissed.