State ex rel. Ault v. Long

Decision Date22 November 1883
Docket Number10,865
PartiesThe State, ex rel. Ault, v. Long
CourtIndiana Supreme Court

From the Tipton Circuit Court.

The judgment is affirmed, at the costs of the relator.

J. T Cox, M. F. Cox and J. M. Fippen, for appellant.

D Waugh, J. P. Kemp, R. B. Beauchamp and G. H. Gifford, for appellee.

OPINION

Black C.

This was an information under the statute, on the relation of Jesse Ault, against the appellee, John Long, charging him with unlawfully holding against the relator the office of recorder of Tipton county.

The answer of the appellee was, in substance, as follows: At the general election held in said county on the second Tuesday in October, 1874, one Archibald E. Small was duly elected to the office of recorder of said county for the term of office commencing on the 1st of November, 1875, and ending on the 1st of November, 1879. In pursuance of said election he was by the Governor of the State of Indiana, duly commissioned as such recorder, for said term for which he had been so elected; and he duly qualified and entered upon the discharge of his duties as such recorder under his said election and commission, at the commencement of his said term of office. At the general election held in said county on the second Tuesday of October, 1878, the appellee, being a resident of said county and eligible to said office, was duly elected to said office by a majority of all the legal votes cast at said election, for the term commencing at the expiration of the term of said Small, November 1st, 1879, and ending on the 1st of November, 1883. In pursuance of his said election the appellee was, by the Governor of the State of Indiana, duly commissioned to said office for the term to which he had been elected, commencing and ending as aforesaid.

On the 4th of November, 1878, said Small, who, until that time, from the commencement of his term as aforesaid, had continued to hold said office and to perform its duties under his said election and commission, resigned his office as recorder of said county, thereby creating a vacancy in said office, whereupon, on the same day, the board of commissioners of said county duly appointed the appellee to fill the vacancy in said office occasioned by the resignation of said Small as aforesaid; and thereupon the Governor of the State of Indiana, in pursuance of said appointment, duly commissioned the appellee as such appointed recorder to fill the vacancy in said office occasioned by said resignation, from said 4th of November, 1878, on which day the appellee duly qualified and entered upon the discharge of the duties of said office in good faith, under his said appointment and commission, and not otherwise. He continued to hold and fill said office in good faith, under his said appointment and commission, and not otherwise, up to the 1st of November, 1879, the time of the commencement of the term of office to which he had been elected and commissioned by his commission to the term of office to which he had been elected. On that day he duly executed his bond as required by law as such recorder, for the term to which he had been elected, and said bond was duly approved by the board of commissioners of said county, and thereupon the appellee duly qualified and entered upon the discharge of the duties of said office, under his said election and commission, and for the term to which he had been elected as aforesaid, and not otherwise. He duly qualified and entered upon the discharge of the duties of said office within ten days of the receipt of his commission and commencement of the term of office to which he had been elected as aforesaid, and thereafter he continued to hold said office, and still held it at the commencement of this proceeding; and in his said answer he claimed that he was entitled to continue to hold under his said election and commission until the 1st of November, 1883. It was further alleged that the relator was elected to the office of recorder of said county at the general election held in said county on the 7th of November, 1882, to succeed the appellee in his term of office under his said election and commission, "that is to say, the relator was elected as recorder for the term of office commencing at the expiration" of the appellee's term of office under his said election, as aforesaid, and not otherwise; that the relator, in pursuance of his said election, was duly commissioned, by the Governor of the State of Indiana, to said office, for the term commencing on the 1st of November, 1883; that on the 6th of February, 1883, the relator was duly qualified as such recorder, under his said election and commission, and not otherwise, "and is now demanding and claiming the title to said office. Defendant states the truth to be that the relator's pretended claim to said office at this time is based upon no other facts or consideration than as herein stated. Wherefore he says he is entitled to hold and enjoy the possession and emoluments of said office until the expiration of the term to which he was elected, and demands judgment for his costs."

A demurrer to the answer was overruled, and upon refusal of the plaintiff to plead further, judgment was rendered for the defendant. The ruling upon the demurrer to the answer has been assigned as error.

The information was insufficient; it did not either aver that the relator was eligible to said office, or state facts showing his eligibility. The omission of such an averment did not merely render the information uncertain or indefinite, so that a motion to make it more specific in its averments would have been an appropriate remedy. The averment of a necessary fact was wholly omitted. Reynolds v. State, ex rel., 61 Ind. 392; State, ex rel., v. Bieler, 87 Ind. 320. This being true, the information was not cured by the answer, which contained no averment in regard to the eligibility of the relator. Whether the information was otherwise insufficient, as suggested by counsel for the appellee, we need not decide. In view of the insufficiency which we have mentioned, it could not have been error to overrule the demurrer to the answer.

But we have been earnestly requested to examine and decide upon the merits of the real controversy between the parties. The answer was pleaded as a defence, and not as a counter-claim. Among the averments of the information, it was alleged that at the general election held in said county in 1878, the appellee was duly elected, by a majority of all the legal and qualified voters of said county, to the office of recorder in and for said county, for the term of four...

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    • February 23, 1887
    ... ... Courts, most of all the instruments of the law, ... should sternly refuse to transgress its rules. It is an ... established principle of law, long settled and firmly ... maintained, that a court will not decide any question ... affecting the merits of a case over which it has no ... ...
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  • Jones v. State ex rel. Wilson
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    ...pleading any of the evidentiary facts constituting such eligibility. Reynolds v. State, 61 Ind. 392;State v. Bieler, 87 Ind. 320;State v. Long, 91 Ind. 351. The information was sufficient, and the demurrer thereto was properly overruled. Upon appellee's motion the court struck out a part of......
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