Appellee had recovered a judgment at law against appellant for a sum of money. The defense was usury, and defendant appealed to the Court of Appeals. 199 So. 886. Thereafter, the appellee, plaintiff in the judgment, entered a cancellation and discharge of it on the record of the judgment, and made a motion in the Court of Appeals to dismiss the appeal. That court denied the motion, and on certiorari to this court, the judgment so doing was reversed, holding as we did that the motion to dismiss should have been granted at the cost of appellee so moving.
On this rehearing, the question has been again carefully considered and the majority of the court adhere to that conclusion, but wish to extend the discussion on that subject.
There is no doubt of the general rule that if pending an appeal "appellee * * * does, or relinquishes the right to do, some act in respect to which the appeal was taken," the appeal should be dismissed. Caldwell v. Loveless, 17 Ala. App. 381,85 So. 307; 3 Am.Jur. 308, section 733; 4 Corpus Juris Secundum, Appeal and Error, p. 1955, § 1354 f, page 1967, § 1362; Alabama Power Co. v. City of Sheffield, supra.
As to this there is no controversy. But it is contended that this situation is within the exceptions to such rule. There are two exceptions to it, (1) is where, if no decision of the question is made on the appeal, collateral rights of the parties dependent upon its decision will be left undetermined, as settled in the following cases: Southern Pacific Co. et al. v. I.C.C., 219 U.S. 433, 31 S. Ct. 288, 55 L. Ed. 283; Boise City Irr. Land Co. v. Clark, 9 Cir., 131 F. 415; Postal Tel.-C. Co. v. City of Montgomery, 193 Ala. 234, 69 So. 428, Ann.Cas. 1918B, 554; Bradford v. State, 226 Ala. 342, 147 So. 182. And (2) where the rights of the public would thereby be affected. Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498,31 S. Ct. 279, 55 L. Ed. 310; Boise City Irr. Land Co. v. Clark, supra; United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290,17 S. Ct. 540, 41 L. Ed. 1007; 3 Am.Jur. 310, note 10; 4 Corpus Juris Secundum, Appeal and Error, § 1362, p. 1969, note 6.
The text of 3 Am.Jur. supra, states the exception as follows: "Where the question involved is a matter of public interest": or, in 4 Corpus Juris Secundum, Appeal and Error, § 1362, p. 1969, it is said, "if * * * the intervening event was due to the voluntary act of appellee the appeal will not necessarily be dismissed." Two cases from Washington State are cited, but they add nothing to our inquiry. And on page 1970, § 1362, note 18, of 4 Corpus Juris Secundum, Appeal and Error, it is said where the subject of litigation is no longer in issue, the appeal will be dismissed unless the substantial rights and equities of the parties require adjudication.
The distinction here drawn is illustrated in the case of Bradford v. State, 226 Ala. 342, 147 So. 182. That was quo warranto, and the question was ultimately to determine whether the city attorney of Fairwas tried in the circuit court before that field had a fixed term of office. The suit term, if it existed, had expired, but on appeal it was submitted in this court after the term expired. But the right to the emoluments of the office continued to exist, notwithstanding it had become moot in so far as the performance of the duties thereafter were concerned. The court differentiated the cases of Ham v. State,172 Ala. 239, 54 So. 996, and State ex rel. Case v. Lyons,143 Ala. 649, 39 So. 214.
In these cases, also in Coleman v. Mange, 238 Ala. 141,189 So. 749, the only question was as to the right to hold the office for a certain term. Since that term had expired, the question was moot. But in the Bradford case, supra, though it was moot as to the main issue, that is the holding of the office for an expired term, it was held in court on account of the rights existing between the parties to determine which was entitled to the emoluments. The other cases were not overruled, nor their authority questioned. Surely the members of the public have as much interest in knowing whom to recognize as the holder of a public office as to have the usury statute construed as applied to a given state of facts.
Neither situation is that sort of public interest which will hold a case in court after there ceases to be any rights of the parties to be determined. But if either or both parties have collateral rights growing out of the transaction, the court will hold the case and decide it.
This differentiation is also well illustrated in Postal Tel.-C. Co. v. Montgomery, supra. In that case an injunction *Page 389 had been issued relating to the performance of acts during the year 1914. That year expired, and the main question was moot. But the court held the case and decided it because its decision affected liability on the injunction bond which had been given.
In another injunction case, when the question became moot, the appeal was dismissed. County of Montgomery v. Montgomery Traction Co., 140 Ala. 458, 37 So. 208.
In Ex parte McFry, 219 Ala. 492, 122 So. 641, the proceeding was dismissed after it became moot, saying there was no such right to be determined as in the Postal Tel.-C. Company case, supra.
In Adams v. Riddle, 233 Ala. 96, 170 So. 343, 107 A.L.R. 657, the case was not dismissed after the term of the lease in question expired because under the Postal Tel.-C. Company case, supra, rights remained undetermined, such as a controversy as to its continuance, and liability on supersedeas bond on appeal to the circuit court.
On the subject of a public interest, it is conceded that every person belonging to the public is interested in having decided every question of law which governs individual conduct or interprets contracts such as any of them may enter into.
The public have no other interest in the interpretation of alleged usurious contracts than other kinds thought to violate some statute. But that is not the sort of public interest which will be taken care of so as to prevent the dismissal of an appeal when there ceases to be a personal interest of the parties in its decision. As pointed out in some of the cases, it must affect the interest of the body politic as, for example, its revenue laws, or some situation "affected with a public interest" as public utility rates, where the state or government is said to be "as a substantial trustee for the public." Southern Pacific Terminal Co. v. I.C.C., supra [219 U.S. 498, 31 S. Ct. 284, 55 L. Ed. 310].
It is the judgment of a majority of the court that the situation here presented does not come within an exception to the general rule which obtains in this and apparently all other jurisdictions.
We agree with Justice BOULDIN that it was the right and duty of the Court of Appeals to decide whether this case comes within an exception to the general rule, as it decides all other legal questions which come before it. But on certiorari to this court, it becomes our duty to review a decision of that sort as of all other legal questions.
We have concluded that the Court of Appeals did not duly make application of the law to this situation, and that the application for rehearing should be and it is overruled.
Application for rehearing overruled.
THOMAS, FOSTER, KNIGHT, and LIVINGSTON, JJ., concur.
GARDNER, C. J., and BOULDIN and BROWN, JJ., dissent.