dissent">Dunbar, J.

(dissenting) — I am compelled to dissent from the opinion of the majority in this case. It seems to me it falls squarely within the rule announced by this court in Hice v. Orr, 16 Wash. 163 (41 Pac. 424). It is true that, in that case, as stated by the majority opinion in this, when the cause on appeal came on for hearing in this court it appeared that a city attorney had been nominated by the mayor and confirmed by the council, and was then discharging the duties of the office; but a motion was made to dismiss the appeal because there was no longer any actual controversy involving any substantial rights, and no subject matter upon which the judgment of this court could operate. The same state of affairs exists in the case at bar. It appears by the record made by the relator that his lease had expired before the judgment from which he seeks to appeal was rendered, and that, according to the record which he has made, there is no subject of controversy to be litigated in this court. When a controversy exists, it is no doubt true, as said by the majority, that it is the duty of the court to exercise its *584discretion and fix the amount of the supersedeas bond on appeal. It is true, also that t-he statute provides that, if either party feels aggrieved by the judgment, he may appeal to the supreme court as in other civil actions; but the statute must be construed with reference to the remedy intended, and it must be a real, and not a fancied, grievance which appears from the record. But when it affirmatively appears from the record that there is no grievance which this court can determine, then it would be useless to hold with the dry letter of the law. In other words, it is not the correctness of the party’s contention,, but the question whether he makes any contention in the record, that gives the right of appeal, or that determines whether he feels aggrieved within the meaning of the law. In the case of Hice v. Orr, supra, and in many other subsequent cases, this court has dismissed appeals upon motion where a showing was made that the subject of the controversy no longer existed. It is palpable that, if the answer of the relator’ shows that his lease had expired before the judgment was rendered, the subject of controversy in this case no longer exists. It would be inconsistent for this court to compel the lower court to nominate a supersedeas bond for the purpose of effecting an appeal for the benefit of the relator, when, if the same state of facts which exists here was shown upon a motion to dismiss the appeal after it comes here, the court would sustain the motion. Oertainly, under the authorities cited, and under all authority, if, upon a motion made to dismiss this appeal after it is instituted, it should appear, not only that before judgment the subject of controversy, viz., the tenure of the lease, had expired, but that after judgment it had expired, this court would hold that there was no controversy existing, and that the appeal *585should he dismissed. That being the ease, the writ should he denied.

Eullerton, J., concurs in dissenting opinion.

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