Couch v. State ex rel. Brown

• Decision Date: 07 November 1907
• Docket Number: No. 20,963.,20,963.
• Citation: 82 N.E. 457,169 Ind. 269
• Parties: COUCH et al. v. STATE ex rel. BROWN.
• Court: Indiana Supreme Court

169 Ind. 269

82 N.E. 457

COUCH et al.

v.STATE ex rel. BROWN.

No. 20,963.

Supreme Court of Indiana.

Nov. 7, 1907.

Appeal from Circuit Court, Jefferson County; Hiram Francisco, Judge.

Mandamus proceeding by state of Indiana, on the relation of William Brown, against John G. Couch and others. From a judgment for relator, defendants appeal. Affirmed.W. F. Fridley and Geo. B. Hall, for appellants.

MONTGOMERY, J.

An alternative writ of mandamus was issued by the Switzerland circuit court upon the application of relator, requiring appellant and others to show cause why they should not surrender to him possession of the office of the trustee of the Fifth Ward of the town of Patriot. Appellants' motions to quash and demurrers to the writ were overruled, issues of fact were joined, and the cause transferred to the court below. A trial by the court was had, a special finding made, and judgment rendered in favor of the relator. Errors have been assigned upon the overruling of appellants' motions to quash, and demurrers to, the writ, and upon the several conclusions of law stated.

It appears from the allegations of the alternative writ that on November 7, 1905, a general election of municipal officers was held in the town of Patriot, and relator and appellant, Rush Platt, were opposing and the only candidates for the office of trustee of the Fifth Ward of said town; that relator was a resident of the ward and in all respects, particularly averred, legally qualified to hold said office; that he received the highest number of votes, and was by the election board duly declared elected as such trustee for the term beginning on the first Monday of May, 1906, and ending on the first Monday of January, 1910; that a certificate of his election was signed and issued to him by the election board, and on November 10, 1905, he subscribed and took the oath of office, which was indorsed upon the back of such certificate; that on the first Monday of May, 1906, the board of trustees of said town was convened in session according to law, and comprised the following members: John G. Couch, Frank McHuron, Harvey Elliott, Henry Schroeder, and the relator-and while so convened relator presented his certificate of election and official oath to Rosman I. White, the town clerk of said town, and requested the same to be filed, and to the members of said board and demanded possession of said office, but Couch and Schroeder, together with appellant, Rush Platt, who was then and there present, and who had been trustee from said ward for the term immediately preceding, over the votes and protests of Elliott and McHuron, refused to permit him to take said office or to participate in the proceedings of the board, and said clerk refused to receive and file such election certificate and oath, and said Platt continued in possession of said office, and refused to surrender the same or anything connected therewith.

It is contended that appellants' motion to quash, and demurrer to, the alternative writ, should have been sustained for the reason that the relator had a complete remedy at law. The doctrine that a writ of mandamus is not proper and will not be granted, where the applicant has another adequate remedy, has been frequently declared by this court. State ex rel. v. Real Estate, etc., Ass'n et al., 151 Ind. 502, 51 N. E. 1061;Wampler v. State ex rel., 148 Ind. 557, 47 N. E. 1068, 38 L. R. A. 829;State ex rel. v. Board, etc., 131 Ind. 90, 30 N. E. 892;Harrison School Tp. v. McGregor, 96 Ind. 185;State ex rel. v. Board, etc., 25 Ind. 210;Board, etc., v. Hicks, 2 Ind. 527. Appellants' application of this principle to the case at bar proceeds upon the assumption that this is an action to try the title to an office. This assumption is erroneous; and it must be observed and borne in mind that no adversary claims to the right of possession or title to the office named appears from the complaint. The complaint proceeds upon the theory that relator was duly elected, commissioned, and qualified as trustee from the Fifth Ward, and that appellants arbitrarily refused to receive and honor his certificate of election, or admit him to membership upon the board of trustees. It is clearly shown that relator was clothed with a prima facie title to the office, and the right to enjoy the privileges and exercise the functions thereof. It is true that a writ of mandamus cannot be rightfully invoked to settle a doubtful claim to an office, or to have the title thereto adjudicated as between adverse claimants, and in such case an information in the nature of quo warranto affords the proper remedy. Hoy v. State ex rel. (Ind. Sup.) 81 N. E....