Carli v. Rhener

• Decision Date: 15 October 1880
• Citation: 27 Minn. 292
• Parties: CHRISTOPHER CARLI <I>vs.</I> ESAIAS RHENER.
• Court: Minnesota Supreme Court

Page 292

27 Minn. 292

CHRISTOPHER CARLIvs.

ESAIAS RHENER.

Supreme Court of Minnesota.

October 15, 1880.

Appeal by defendant from an order of the municipal court of Stillwater, vacating and setting aside the decision and order for judgment and the judgment in his favor thereon, mentioned in the opinion.

L. E. Thompson, for appellant.

Gregory & Comfort, for respondent.

BERRY, J.

Norgord was and acted as the judge of the municipal court of Stillwater for the two years prior to April 7, 1880. On that day Smith, who had been duly elected as his successor, took the requisite oath of office at five minutes after 11 A. M., and we may as well assume (what we understand to be the fact, though it does not appear as it ought to,) that he immediately filed such oath in the office of the city clerk, as by law required, so that he was duly qualified. Norgord, between the hours of 11 and 12 of the same day, and after Smith had qualified, signed findings of law and fact in the case at bar, closing the same with a direction for judgment accordingly. It appears — though we do not perceive that this is important — that he (Norgord) had arrived at a determination of the case before Smith qualified; but such his determination had not then been reduced to writing. At the time of signing the findings and direction he had not been made aware that Smith had qualified. The clerk of the municipal court, upon the filing of the findings and direction on the next day, entered judgment accordingly. There is nothing to show that Smith in fact took possession of the office for which he had qualified, by exercising any of its functions or duties, until after the findings and direction had been signed and handed to the attorney for the successful party to be filed with the clerk.

Upon this state of facts, we are of opinion that the judgment was valid. Norgord came into office under an election or appointment, (it does not appear which,) the regularity and validity of which are not questioned. Under color of this election or appointment he was exercising the duties of the office at the time of signing the findings and direction spoken of. Inasmuch as Smith had qualified, he was de jure the judge, and Norgord's term de jure was, under the statute, at an end. Gen. St. 1878, c. 64, § 133. But, as it in no way appears that Smith had taken possession of the office by exercising any of its duties or functions, Norgord, who was exercising its duties under the color spoken of, continued...