Baker v. Nichols

• Decision Date: 12 June 1916
• Docket Number: 17929
• Citation: 72 So. 1,111 Miss. 673
• Court: Mississippi Supreme Court
• Parties: BAKER v. NICHOLS et al

72 So. 1

111 Miss. 673

BAKER v. NICHOLS et al

No. 17929

Supreme Court of Mississippi

June 12, 1916

APPEAL from the chancery court of De Soto county, HON. J. G MCGOWEN, Chancellor.

Suit by German Baker for discovery and accounting against E. S Nichols and others. From a decree sustaining defendant's demurrer, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Decree reversed, demurrer overruled, and cause remanded.

Mayes &amp Mayes, for appellant.

R. L Dabney, Holmes & Logan and Lauderdale & Lauderdale, for appellees.

OPINION

STEVENS, J.

This is a suit in equity instituted by appellant, as complainant in the court below, against E. S. Nichols, Mrs. Anna Eliza Harris, and W. H. Harris, appellees herein, for a discovery, accounting and decree for the perquisites and emoluments of the office of sheriff of De Soto county. The record discloses that on November 25, 1912, W. P. Harris, the lawful sheriff of De Soto county, died leaving the office in charge of appellee, E. S. Nichols, the acting deputy sheriff. On November 27th the governor of the state, acting under section 103 of the Constitution, appointed German Baker, the appellant, as sheriff to succeed W. P. Harris, deceased, and to fill the vacancy in the office until an election could be held. Appellant qualified by taking the oath and executing a bond which was duly approved by the proper authority, and presented himself at the sheriff's office to take charge of the books and to perform the duties of the office. Mr. Nichols, the deputy, refused, however, to turn over the office or any of the books and records to the governor's appointee, asserted that he, as a regular deputy, under section 3487 of the Code, had a vested right to hold the office until an election could be held, and declined to recognize the appointment or authority of appellant. On January 2, 1913, an election was held to fill the vacancy, and at this election Mr. Nichols received a majority of the votes cast and the governor issued to him a commission. On January 31st quo warranto proceedings on the relation of appellant were instituted against Mr. Nichols, charging, among other things, that the latter was not a qualified voter and therefore was disqualified to hold the office. From a judgment of the circuit court sustaining a demurrer to the petition in quo warranto, appellant prosecuted an appeal to the supreme court and secured a reversal of said judgment as disclosed by the reported case of State ex rel. German Baker v. E. S. Nichols, 106 Miss. 419, 63 So. 1025. In February 1914, Mr. Nichols, the respondent in the quo warranto proceedings, filed a plea to the petition averring that he was in deed and in fact a qualified elector and was, under section 3487 of the Code authorized to serve as the lawful deputy and to discharge all the duties of the office of sheriff. Thereafter the district attorney and German Baker, the relator, dismissed the petition in quo warranto without prejudice to any of the rights of Mr. Baker. In November, 1914, Mr. Baker exhibited the bill of complaint in the present cause, setting out all the foregoing proceedings except the institution of the quo warranto proceedings, asserted his right to the office, charged that Mr. Nichols and the sureties on his bond had been and were wrongfully excluding him from the office, were appropriating the profits thereof, and prayed for an accounting and a decree for the fees, commissions, emoluments, and benefits which Mr. Nichols had received from the office from December 2, 1912, to the date of said suit. The bill also charged that Mrs. A. E. Harris, the widow of W. P. Harris, deceased, and W. H. Harris, his son, were co-operating with Mr. Nichols in receiving and appropriating the fees and commissions of the office, charged that they were administrators by their own wrong of the estate of W. P. Harris, deceased, and should be made to account for the fees, commissions, and benefits received by them. There is also a prayer in the bill that the books, papers, and paraphernalia of the office be surrendered and delivered over to the complainant, and that Mr. Nichols should be enjoined and restrained from holding the said office, as well as the books and papers thereof, and that he should be required to surrender and deliver the same over to the complainant. A demurrer was interposed to the bill and sustained by the court. Thereupon complainant by leave of the court amended the original bill by interlining in red ink the following averment:

"That the complainant, German Baker, has established his right and title to the office of sheriff and tax collector of De Soto county, Mississippi, by quo warranto proceedings in circuit court of said county and has been adjudged the de jure sheriff and tax collector of said county since December 2, 1912, and is now the de jure sheriff and tax collector of said county."

The defendant then interposed a special plea to that part of the amended bill set out in red ink, denying that appellant was the lawful sheriff and tax collector, denying that his title to the office had been adjudicated by the circuit court, and offered to verify the facts set out in the plea by the record and proceedings in the case of State ex rel. German Baker v. E. S. Nichols. Issue was taken, in short, on the facts and averments of the special plea, and the cause proceeded to trial on the bill as amended and the special plea. The only evidence introduced was the entire record of the proceedings in quo warranto. The chancellor was of the opinion, and so announced in the final decree, that the chancery court was without jurisdiction to grant the relief prayed for and for that reason dismissed the bill.

About the only question presented for our decision is whether equity has jurisdiction, or, to state the point differently whether appellant can invoke the aid of chancery court for a discovery and decree for fees and commissions without first having established his right or title to the office by judgment in a quo warranto proceeding. It is established by the record that appellant, after having...