(dissenting). The motion to dismiss the appeal ought to be sustained, as the necessity of an injunction ceased upon the payment of taxes and cancellation of the certificate of tax sale, and no*issue was left to be litigated. The fact that a controversy no longer exists between the parties may be shown at any time before final review; and voluntary payment of municipal taxes made the basis of an action to determme.their legality leaves nothing for investigation, and requires a dismissal of the appeal on motion. Little v. Bowers, 134 U. S. 547, 10 Sup. Ct. 620, 33 L Ed. 1016; West v. Fitzgerald, 72 Iowa, 306, 33 N.W. 688; Parker v. Bilgery (La.) 17 South 846; Hipp v. Crenshaw, 64 Iowa 404, 20 N. W. 492; Gold Mines Co. v. Brown, 20 C. C. A. 264, 74 Fed. 12; Rolette Co. v. Pierce Co., (N. D.) 80 N. W. 804. “Nor will the court pass on the merits merely for the purpose of relieving the appellant from a judgment for costs, as costs are merely an incident of a litigation.” Bank v. Kaeppler, (N. D.) 75 N. W. 253. With reference to actions against municipal corporations to recover back money paid them for taxes, Judge Dillon says: “The *615payment by the plaintiff must have been made upon compulsion, — as, for example, to prevent the immediate seizure of his goods or the arrest of his person, — and not voluntarily. Unless these conditions concur, paying under protest will not, without statutory aid, give a right to recovery.” 2 Dill. Mun. Corp. p. 1145. The true rule seems to be as stated in Commissioners v. Walker. 8 Kan. 431, as follows: “Where a party pays an illegal demand, with full knowledge of all the acts which render such demand illegal, and without an immediate and urgent necessity therefor, unless to release his person or property from detention, or to prevent an immediate seizure of the same, such payment must be deemed to be voluntary, and cannot be recovered back; and the fact that the party at the time of making the payment filed a written protest does not make the payment involuntary. ” Of course, it is not my purpose to treat this as an action in assumpsit for money had and received, nor to intimate that in no event can taxes actually paid be recovered back. The doctrine of the cases is invoked only in so far as applicable to this motion. The record, as presented, discloses no duress, coercion, or compulsion, but, on the contrary, the payment of taxes merely to avoid a cloud arising from the issuance of a tax deed. As a matter of law, such payment, was voluntary, and sufficient to extinguish every meritorious issue not disposed of by the former decision of this court. 12 S. D. 523, 81 N. W. 910.