Allen v. Robinson

• Decision Date: 01 January 1872
• Parties: JOHN D. ALLEN v. GEORGE W. ROBINSON.
• Court: Minnesota Supreme Court

Page 90

17 Minn. 90

JOHN D. ALLENv.

GEORGE W. ROBINSON.

Supreme Court of Minnesota.

Application on petition and order to show cause for a peremptory writ of mandamus, requiring the respondent to deliver to the petitioner the office, business, records, files, etc., of the office of register of deeds, Mower county.

J. B. Brisbin, Cameron & Johnson, and A. S. Everest, for appellant.

Page & Wheeler and C. K. Davis, for respondent.

RIPLEY, C. J.

Upon the petition and affidavit in support thereof, on which it was ordered that the respondent show cause why a peremptory writ of mandamus should not issue to him to deliver to petitioner the office, business, records, files, etc., of the office of register of deeds for Mower county, and upon the affidavits presented by respondent against the issuance thereof, the facts of this case appear to be as follows:

At the last general election the petitioner and respondent were both candidates for the office of register of deeds. The board of canvassers declared the petitioner to be elected, and he received the certificate thereof as provided by Gen. St. c. 1, § 30.

The respondent duly gave notice of contest; a trial wherein having been duly had in the district court, judgment thereon was rendered on the thirty-first day of December, 1870, reversing the said decision of said board of canvassers, declaring said certificate null and void, and that respondent was duly elected to said office.

On the second of January, 1871, respondent took the oath and gave the bond prescribed by law for such office, which bond was on the same day approved by the board of county commissioners, and on the same day the respondent demanded of one Hathaway, the old register, and then incumbent, that he deliver over to him the office, and books, papers, records, etc., thereto appertaining, which said Hathaway refused to do, and on the same day delivered the possession thereof to the petitioner. On the same day respondent made a like demand on the petitioner, which was refused.

On the third day of said January petitioner took the oath and gave bond as by law prescribed for such office, which bond was on the same day approved by said board, and petitioner on the same day entered upon the discharge of the duties of said office. On the same day petitioner obtained an order of the district court staying proceedings on said judgment for 20 days.

On the fourth day of said month petitioner gave notice of appeal to this court, and served and filed a bond with sureties approved by said court in $2,000, conditioned as required by Gen. St. c. 1, § 52, and also as specified in chapter 86, §§ 10, 12.

On the twelfth day of said month the district court made an order vacating said stay of proceedings. On the same day, pursuant to an order of said court of that date, and an affidavit of respondent's attorney of his belief that by reason of partiality and prejudice the sheriff would not faithfully perform his duties therein, a writ issued out of the clerk's office of said court directed to the coroner, reciting said judgment, and commanding him to put said respondent in possession of said office and the records, etc., also commanding said Allen, his deputies and servants (though the writ is not directed to them, and there is no recital therein that he was in possession) to yield obedience thereto, and yield and deliver up said office, records, etc.; upon which writ the coroner returns that he served the same on the thirteenth day of said month, at Austin, in said county, by delivering a true copy thereof to petitioner and said Hathaway, a deputy of said petitioner, and by putting respondent into possession of the office, key, and records, etc.

In Atherton v. Sherwood, 15 Minn. 221, (Gil. 172,) this court held that as against an incumbent holding till his successor is elected and qualified, one who has received the certificate of election and has qualified, is prima facie the successor in office of said incumbent, and entitled on mandamus to the possession of the office, until in a proper proceeding for that purpose his title to the office shall have been tried and found defective, when, of course, his right to possession would cease.

When Hathaway, the former incumbent of this office, delivered possession to petitioner, the title of the latter thereto as register-elect had been contested by the respondent in the manner provided by law, and the judgment of the proper court had been rendered, declaring respondent, and not petitioner, to be such register-elect, and annulling the certificate of election issued to petitioner by the county board.

The respondent had qualified and when, on said second day of January he demanded possession of Hathaway, he was, so far as Hathaway was concerned, to all intents and purposes, in the words of the law, his successor duly elected and qualified.

Under the territorial statutes the clerk of the district court would, upon such judgment, have issued a certificate to respondent which would have been conclusive evidence of his right to hold the office. Rev. St. c. 6, § 5. The judgment cannot be less so.

If, therefore, the respondent had applied upon said Hathaway's refusal for a peremptory mandamus on said Hathaway to be put in possession, what reason could the latter have assigned why it should not issue? None, certainly; for whatever the effect of an appeal, none was then taken. That he had let the petitioner into the office would not avail him, for he could not escape his duty of turning the office over to his successor by pleading his own wrong in putting an unauthorized person into it. In law petitioner would be but Hathaway's servant, or in possession by his license only, which he would be bound to revoke.

On the second of January the respondent was entitled to the possession of said office, and, as against him, the petitioner's possession was but Hathaway's possession, and like his, absolutely without right.

Let us assume, then, this being so, that he had yielded, as his duty was, to the respondent's demand made on that day, and given him possession. Though the petitioner has no longer possession, nor the right of possession, he has the right to appeal from the judgment.

The next question, then, is as to the effect of the exercise of this right upon the possession of the office. Who is entitled to it during the pendency of the appeal?

The effect of the appeal, in this respect, must be the same, whether it be taken on the day the judgment is entered, the next day, or six months thereafter.

The respondent's rights, whatever they may be, accrue upon the rendition of the judgment, and the judgment must be rendered before an appeal can be taken, though it be but the moment before.

Suppose, now, that the petitioner appeals on the last day of the six months, and on the next day demands possession of the respondent, and on his refusal applies...