There are two appeals pending before this court from orders made by the trial judge fixing the day for the execution of Theodore Durrant. The particular day fixed for the execution in each order has long since gone by. The attorney general now moves this court to dismiss those appeals upon the ground that the orders from which they were taken have ceased to have any force and effect- whatever; that the questions raised thereby are no longer living questions; and that' any decision rendered upon them could not possibly affect the rights of the defendant. In other words, it is insisted that by the mere lapse of time the appeals present nothing but moot questions. This position of the attorney general is eminently sound, and the appeals should be dismissed. The decision of them upon the merits could do neither the defendant nor the people any possible good; and under such circumstances our time should be devoted to matters more substantial and material. In People v. McNulty, 95 Cal. 594, the court refused to dismiss an appeal from an order similar to those here involved; but there the day fixed for the *212execution had not expired when the motion was made. Hence that case has no bearing here. Some question is made by appellant upon these appeals to the effect that the orders were erroneous because they provided for close confinement of the defendant by the warden until the day of execution. But this contention has no force now, for the reason that such period of close confinement ceased when the day of execution passed by. So that portion of these orders is doing the defendant no injury, even conceding it erroneous. He has served his full time of close confinement under these orders, rightfully or wrongfully, and a decision of these appeals would in no way affect the matter. The case stands exactly as though a party 'should serve a sentence of one hundred days in jail, and thereafter appeal from the judgment of conviction. The court would refuse to hear such an appeal upon the ground that there was no live material issue before it.
The foregoing principles of law are fully supported by numerous decisions of this court, and I rest the matter with a single citation. In Foster v. Smith, 115 Cal. 611, the syllabus correctly declares the principle of the decision as follows: “Where a temporary injunction was granted to restrain a stockholder from voting at an election of the directors of a corporation, .... and such injunction was dissolved prior to the election, an appeal taken from the order dissolving the injunction after the election had been held raises only an abstract question and will be dismissed.” In the body of the opinion it is said: “It thus appears that the parties to the litigation have no rights which can be affected by a reversal of the order, and that the correctness of the order has become merely-an abstract question.” And again: “If the order should be reversed, the superior court would have no function to perform in consequence of such reversal.” Upon sound reason, the same principle necessarily applies to this ease.
I see no material and substantial purpose to be subserved by a dismissal of these appeals. As the case now stands there is no legal reason to my knowledge why the trial court should not take steps to enforce its judgment. Yet such relief is asked by the attorney general, and there is no possible objection to granting it.
I dissent from the order refusing to dismiss the appeals.