Ellis v. Armstrong
| Decision Date | 10 January 1911 |
| Citation | 114 P. 327,28 Okla. 311,1911 OK 19 |
| Parties | ELLIS et al. v. ARMSTRONG et al. [d1] |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In mandamus, pursuant to Wilson's St. Okl. § 4888, it is unnecessary to allege in the motion the eligibility of the parties stated therein to have been elected to office.
Where relators show prima facie title to the office, they are entitled to the aid of mandamus to compel their recognition as members of the board of trustees of an incorporated town and their right to officially participate in its deliberations.
Where in mandamus, pursuant to Wilson's St. Okl. § 4888 defendants, by appearing, waive the issuance of the alternative writ and the rule to show cause, and demur, the court will treat such pleading as an answer admitting the facts recited in the motion, and apply the law thereto.
Error from District Court, Texas County; R. H. Loofbourrow, Judge.
Mandamus by O. C. Armstrong and others against G. L. Ellis and others. Judgment for plaintiffs, and defendants bring error. Affirmed.
Wm Clark, for plaintiffs in error.
M. G Wiley and Wiley & Edens, for defendants in error.
On June 16, 1910, O. C. Armstrong, John Houston, and H. E. Quisenberry, defendants in error, as plaintiffs, filed in the district court for Texas county at Guymon, upon affidavit, what is indorsed as a "motion for writ of mandamus," naming G. L. Ellis, W. W. Irvin, and J. N. McEnulty, trustees of the town of Hooker, plaintiffs in error, parties defendant. Therein plaintiffs substantially state that defendants are members of the board of trustees of said incorporated town in said county, and that said Ellis is the president of said board; that plaintiffs are also members of said board, being each duly elected to the office of trustee of said incorporated town at the general election held therein for the election of said trustees on the first Tuesday in April, 1910, and that each of them received his certificate of election to said office; that said Armstrong was elected as such trustee from the First, Quisenberry from the Second, and Houston from the Third, ward of said town; that neither plaintiff had an opponent in said election and each received a majority of the votes cast by the electors voting therein for candidates for said office. They filed their respective certificates of election and oaths of office as part of said motion, and further allege that after being elected as aforesaid, and before the first Monday in May, 1910, each of said plaintiffs received his said certificate and qualified as trustee by taking said oath of office and filing same in the office of the town clerk of said town; that defendants are and ever since the first Monday in May, 1910, have been, assuming to act as the board of trustees of said town independent of plaintiffs, and refuse to recognize plaintiffs as members thereof, and to allow them to participate in its proceedings, without lawful excuse or cause; and they pray that a writ of mandamus issue directing defendants and each of them to allow plaintiff's and each of them to have their names placed upon the roll of the board of trustees of said town and to recognize plaintiffs as members of said board and permit them to sit as such and officially participate in its deliberations and proceedings, and for their cost.
On the same day, in the absence of the alternative writ or a rule to show cause, defendants filed a general demurrer to said motion, which the court overruled, whereupon defendants excepted and asked leave to answer, which was by the court refused, and, after again excepting, and the peremptory writ had run, defendants bring the case here, and assign for error the overruling of their demurrer. As Wilson's St. Okl....
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