Duffy v. Edson

• Decision Date: 21 November 1900
• Citation: 84 N.W. 264,60 Neb. 812
• Parties: DUFFY v. EDSON.
• Court: Nebraska Supreme Court

60 Neb. 812

84 N.W. 264

DUFFY

v.EDSON.

Supreme Court of Nebraska.

Nov. 21, 1900.

Syllabus by the Court.

1. Quo warranto proceedings begun by the relator in his own behalf as claimant to the office, in the prosecution of which the county attorney joined as one of the attorneys in the case. Held to be sufficient to show that the action is brought with the consent of the county attorney, as required by section 1, c. 71, Comp. St. 1899. Kane v. People, 4 Neb. 509, followed.

2. Petition examined, and held to state but one cause of action.

3. In an action tried to a court without a jury, prejudicial error cannot be predicated on the rulings in the admission of evidence. A reviewing court will only ascertain whether there is sufficient proper and competent evidence to support the judgment rendered.

4. Case at bar distinguished from State v. Lansing, 48 Neb. 514.

5. Where an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain such right by the neglect or misconduct of a public officer, the law will protect him.

6. A county officer elect may properly rely upon the presumption that a board of county commissioners will do its duty, and convene in timely session to act upon official bonds presented to it for approval within the time limited by statute.

7. If a person elected to an office presents for approval an official bond, in all respects as required by law, within the time fixed by statute, and because of the failure of the approving body to meet, or by reason of nonaction thereon, or for any other neglect or omission of duty on their part, an official bond is not approved until after the time limited, and is then approved and filed, the same will be deemed a compliance with the provisions of the statute, and the doctrine of relation is applicable, each subsequent act relating back to the dominant one, to wit, delivery for approval, and will be deemed as having been done as of the time within which, in contemplation of law, it should have been approved.

8. A judicial officer, in qualifying for an office to which he has been elected, is required to take and subscribe to the oath prescribed in section 1, art. 14, of the constitution.

9. Where an officer elected to a judicial office failed to take the constitutional oath of office within the time contemplated by statute, because of a mistake on his part as to the proper official oath to be by him taken, but soon thereafter took and subscribed to the proper oath, and filed it in the proper office, and before the office had been declared vacant, or any other right or title had intervened, held, that such failure did not of itself forfeit the office, and was not a refusal to take the constitutional oath, within the meaning of the word as there used.

10. Where, as in this case, the officer-elect presented with his official bond, which was approved and filed, the official oath prescribed by section 1, c. 10, Comp. St. 1899, instead of the oath required by section 1, art. 14, of the constitution, under the mistaken belief that the oath taken was the one required by law, and soon afterwards, but beyond the time limited by law, upon discovery of the error, subscribed to and filed with the proper officer the oath required by the constitution, held, that such error was an innocent mistake and oversight, and might be thus corrected, and that his right and title to the office were not forfeited because of such mistake.

Error to district court, Webster county; Adams, Judge.

Quo warranto by the state, on the relation of Isaac W. Edson, against James Duffy. Judgment for plaintiff. Defendant brings error. Affirmed.

Norval, C. J., dissenting.Chaney & Mercer, Robert T. Potter, and B. McNeny, for plaintiff in error.

Overman & Blackledge, and A. D. Ranney, for defendant in error.

HOLCOMB, J.

By quo warranto proceedings, the relator, Isaac W. Edson, defendant in error, seeks to obtain possession of the office of county judge of Webster county, which, it is alleged, is wrongfully withheld by the respondent, James Duffy, plaintiff in error. Briefly, the facts, as disclosed by the record, may be summarized as follows: The relator was elected to the office named at the general election held in 1899. The respondent was the then incumbent of the office, having been previously elected for the term expiring on the first Thursday after the first Tuesday in January, 1900. After his election, and on December 30, 1899, the relator made and presented for approval his official bond, with the statutory oath of office provided for by section 1, c. 10, Comp. St. 1899, indorsed thereon. The bond as thus prepared was presented to and filed with the county clerk, who is also the clerk of the board of county commissioners, who are charged with the duty of approving bonds of county officers; the board at the time not being in session. Action on the bond with respect to approval was not had by the board of county commissioners until its first sitting after the bond had been filed, which was at a regular meeting held January 9, 1900. The bond on that day was accepted, approved, and recorded as presented. On the same day, and after the approval of relator's bond, the board of county commissioners passed a resolution in substance reciting that the right of relator to hold the office to which he was elected having been questioned by some, because of the nonapproval of his bond until the time mentioned, and, without attempting to determine whether a vacancy exists, in form appointed him to the same office. Another bond, with same oath indorsed thereon, was immediately executed, reciting therein the resolution of appointment, which was likewise approved by the board and recorded in the office of the county clerk on the same day. On January 22d, an oath of office, in form as prescribed by section 1, art. 14, of the constitution, was taken and subscribed to by the relator, and on the same day filed in the office of the county clerk. Various demands by the relator were made upon the respondent for the possession of the office, all of which were refused. It also appears that the respondent, upon the theory that the failure of the relator to secure the approval of his bond on or before the time mentioned in section 15 of said chapter worked a forfeiture of his right to the office, made and tendered for approval on January 9th a “hold-over” bond, as provided in section 17 of the same chapter, on which was indorsed the statutory oath, similar to the one taken by relator. The county commissioners rejected and refused to approve this bond until compelled to do so by an order of the district court upon application for a writ of mandamus issued at the instance of respondent. On January 16th the board, in pursuance of the writ, also approved the hold-over bond tendered by respondent. The present suit was instituted on the 26th of January, resulting in a judgment of ouster against respondent, from which judgment he prosecutes error proceedings to this court.

While some objections of a technical nature are urged against the proceedings by counsel for respondent, we are of the opinion that the case should be disposed of upon its merits, and that the technical objections presented are untenable.

Regarding the authority of relator to prosecute the action, the record discloses that the proceedings were begun by relator in his own behalf, as claimant to the office, and that the county attorney joined in the prosecution as one of the attorneys in the case. This is proof sufficient that the action is brought with the consent of the county attorney, and is all that is required by section 1, c. 71, Comp. St. 1899. Kane v. People, 4 Neb. 509.

To the objection that two separate and distinct causes of action are set forth in the petition, it may be said that relator has only attempted to follow section 707 of the Code, which provides that an information in quo warranto “shall consist of a plain statement of the facts which constitute the grounds of the proceeding, addressed to the court, which shall stand for an original petition.” While the petition probably contains surplusage, a fair construction of the whole of it leads to the conclusion that relator relied upon his election to the office, and qualification thereunder.

As to the action of the board in attempting to strengthen his title by making the appointment without attempting to determine the existence of a vacancy, it may, we think, be said that no vacancy at that time, to be filled by appointment by the county commissioners, existed, and that their action in that regard was a nullity and without force or effect. Richards v. McMillin, 36 Neb. 352, 54 N. W. 566.

While it is urged that there was error in the admission of evidence, this objection may be disposed of with the statement that the case was tried to the court without a jury, and the only question which we are to determine is whether the judgment is supported by sufficient competent evidence and the pleadings in the case. This rule is so well settled that no citations in support of the same seem to be required.

The two controlling propositions in the case are: First, will the failure of relator to secure the approval of his bond within the period provided by statute, under the facts in this case, defeat his title to the office? And, second, what is the legal effect or consequence of his subscribing to, and presenting with his bond, the oath as prescribed by section 1, c. 10, Comp. St. 1899, instead of the oath required by section 1, art. 14, of the constitution, which latter oath was not taken and filed until January 22d, as hereinbefore mentioned? The two questions will be considered in the order named.

Section 15 of the chapter under consideration provides, in substance, that, if any person elected to any office shall neglect to have his official bond executed and approved as provided by law, and filed for record within the time limited by ...