
    [No. 2086.
    Decided December 11, 1896.]
    The State of Washington, on the Relation of B. W. Coiner, Prosecuting Attorney of Pierce County, Appellant, v. James Wickersham, Respondent.
    
    DISMISSAL OF APPEAL — QUO WARRANTO.
    Where, pending an appeal by plaintiff in an action of quo warranto to oust a defendant from office, the defendant is legally appointed and confirmed in the office, the appeal should be dismissed.
    Appeal from Superior Court, Pierce County.—Hon. John C. Stallcup, Judge.
    Dismissed.
    
      
      B. W. Coiner, and Stiles, Stevens & Tillinghast, for appellant.
    
      Ben Sheeks, and Stacy W. Gibbs, for respondent.
   The opinion of the court was delivered by

Anders, J.

This was a proceeding by information instituted by the prosecuting attorney of Pierce county, under chapter 10, title 9, of the Code of Procedure to oust the respondent from the office of city attorney for the city of Tacoma. We will not consider the merits of the case for the reason that it appeared, when it came on for argument in this court, that the respondent had previously been appointed city attorney by the mayor of the city, and the appointment had been confirmed by the city council, and that the respondent was therefore legally in office under the provisions of the city charter.

If it be conceded that the judgment appealed from was wrong and should be reversed, still the judgment prescribed by § 688 of the code, which is that of ouster, cannot be given against the respondent, and a reversal of the judgment would therefore be futile. If the plaintiff was entitled to the relief demanded, or any relief, when the proceeding was commenced, such right has ceased to exist, and in such cases a motion to dismiss the appeal will be granted. Cutcomp v. Utt, 60 Iowa, 156 (14 N. W. 214); State v. Porter, 58 Iowa, 19 (11 N. W. 715); Little v. Bowers, 134 U. S. 547 (10 Sup. Ct. 620); Washington Market Co. v. District of Columbia, 137 U. S. 62 (11 Sup. Ct. 4).

The appeal is dismissed on the respondent’s motion.

Hoyt, C. J., and Scott and Gordon, JJ., concur.

Dunbar, J.—I think appellant should recover costs.  