This is an appeal by the defendant from a judgment rendered in two consolidated cases involving a contested election for the office of councilman of the fourth ward of the city of Bakersfield. Since the cause was submitted for decision, it has been suggested by counsel for respondent that since the judgment was entered, a recall election has been held in which respondent was recalled and appellant was elected as his successor; that therefore the appeal now presents only a moot question. While conceding the facts so stated, counsel for appellant declines to consent to a dismissal of the appeal.

*437 [1] As the appeal is no longer a contest involving the determination of adversary rights, it must be dismissed unless, as suggested, we are required to retain and decide the questions presented solely for the purpose of incidentally determining who shall pay the costs on appeal. It is settled to the contrary in this state. (Nelson v. Nelson, 153 Cal. 204 [94 Pac. 880].)

The appeal is dismissed.

Shaw, J., and James, J., concurred.