
    104 So.2d 477
    STATE of Alabama ex rel. Ed. SHELDON et al. v. Marvin BERGLIN.
    1 Div. 766.
    Supreme Court of Alabama.
    July 24, 1958.
    C. LeNoir Thompson, Bay Minette, for appellants.
    J. B. Blackburn, Bay Minette, Ernest M. Bailey and E. G. Rickarby, Fairhope, for appellee.
   SIMPSON, Justice.

' This is an appeal from a judgment of non-suit in a quo warranto proceeding wherein petitioners sought to oust one Marvin Berglin from the office of councilman of the town of Fairhope. The quo warranto petition claimed certain irregularities in the election of Berglin by the town council in filling a vacancy caused by the resignation of Councilman Fleming.

Appellee has filed in this Court a motion to dismiss the appeal, because the case is now moot on the ground that at the time of the rendition of judgment by the trial court appellee had been duly and legally elected to fill said vacancy. Exhibited with the motion is a properly certified copy of an ordinance of Fairhope which shows this to be a fact. Since appellee is, and was when the decree was rendered, duly and legally elected as a member of the town council, it could not be held that he is unlawfully intruding into, or illegally holding, said office. Hence there is no issue for this Court to resolve. The motion is well taken. See Coleman v. Mange, 238 Ala. 141, 189 So. 749, and cases cited; also Abrams v. State, 17 Ala.App. 379, 84 So. 862, and cases cited.

Motion to dismiss appeal granted.

LIVINGSTON, C. J., and GOODWYN •and COLEMAN, JJ., concur.  