On Motion for Rehearing.
BOTTS, J.By their motion for rehearing counsel for plaintiffs in error, Nicholas Yates and wife, call our attention to the fact that the stipulation upon which we based our opinion was not signed by them in behalf of said plaintiffs in error, but by the plaintiffs in error personally, and argue that inasmuch as the parties had appeared, herein by counsel, such counsel have the exclusive control and management of the cause, and that we should disregard the stipulation. It is their contention that while á litigant may appear either in his own proper person, or by attorney, he cannot do both.
Be that as it may, defendants in error have now furnished an affidavit by Yates to the effect that the subject-matter of the litigation has been fully compromised and settled, and thereupon argue that any questions which were in the case have become moot. The settlement is not disputed by counsel for said plaintiffs in error.
It is a rule of universal application, so far as we know, that an appellate court will not sit in judgment on a controversy which has ceased to exist. Our own court has declared the principle in a number of cases. State ex rel. Woods v. Montoya, 23 N. M. 599, 170 Pac. 60; State ex rel. Martinez v. Holloman, 25 N. M. 117, 177 Pac. 741; Mardorf v. Norment, 26 N. M. 221, 190 Pac. 736; Page v. Gallup, 26 N. M. 239, 191 Pac. 460.
Nor is it material that the fact of the compromise and settlement does not appear in the record. We are authorized to take notice of the fact from evidence dehors the record. Dakota County v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428, 28 L. Ed. 981.
Counsel also call our attention to a misstatement of fact in our original opinion as to the time of filing the stipulation. Upon a re-examination of the record,' we find counsel are correct, and that the stipulation was filed before the briefs. As we view it, the time of filing is not material, but we make the correction in furtherance of accuracy of statement.
The previous order of the court disposing of the case will not be disturbed, and the motion for rehearing will be overruled.
PARKER, C. J., and BRATTON, J., concur.