Fuller v. Roberts County

• Decision Date: 27 August 1896
• Citation: 68 N.W. 308,9 S.D. 216
• Parties: FULLER v. ROBERTS COUNTY.
• Court: South Dakota Supreme Court

68 N.W. 308

9 S.D. 216

FULLER v. ROBERTS COUNTY.

Supreme Court of South Dakota

August 27, 1896

Appeal from circuit court, Roberts county; J. O. Andrews, Judge.

Action by Burt Fuller against Roberts county to recover a salary as county judge. Judgment for plaintiff, and defendant appeals. Reversed.

Howard Babcock, for appellant. George W. Case, for respondent.

CORSON P. J.

The plaintiff, claiming to be the legally elected county judge of the defendant county for the term commencing on the first Monday in January, 1893, brought this action to recover the sum of $750, balance claimed to be due him as such county judge. Judgment was rendered in his favor for $600, and the defendant appeals.

The action was tried by the court without a jury, and its findings of fact are as follows: "First. That a general election was held in said Roberts county on the 8th day of November, 1892, and that at said election the plaintiff, Burt Fuller, was duly elected to the office of county judge of Roberts county for the term commencing January 1, 1893, and thereafter a certificate was duly issued to the plaintiff by the county auditor of said Roberts county, and that on the 3d day of January, 1893, the plaintiff qualified for said office, filing his bond and subscribing the oath of office as provided by law, and immediately thereafter demanded possession of said office, and was during the entire term of said office the de jure officer, and ready and willing to perform the duties of said office. Second. That the salary of the county judge of Roberts county was fixed, and was, at and during the term of office for which plaintiff was elected the sum of six hundred dollars per annum, payable quarterly and that the salary for the entire term of office for which said plaintiff was elected was twelve hundred dollars. Third. That no part of said salary has been paid by the defendant county to plaintiff, Burt Fuller, except the sum of four hundred fifty dollars which was paid on the 8th day of January, 1895. Fourth. That prior to the time when said plaintiff qualified to enter upon the duties of his office, an election contest was commenced by J J. Batterton, the then county judge of Roberts county contesting the election of the said Burt Fuller, and that on the 18th day of September, 1893, judgment was rendered in the said contest action in favor of the said J. J. Batterton and against the said Burt Fuller, sustaining said contest, and that during the time of said term of office the said J. J. Batterton was incumbent in, and performed the duties of county judge in, said office. Fifth. That on the 11th day of January, 1894, an order was made by the court setting aside and vacating the judgment in said contest proceedings, and granted to the plaintiff, Burt Fuller, who was defendant in said contest proceedings, a new trial therein. Sixth. That defendant county has paid to said J. J. Batterton, as salary for the office of county judge for said term, the sum of seven hundred and fifty dollars." From these findings the court concludes, as matter of law, that the defendant county was indebted to the plaintiff for the salary for the term, less $450 paid, and $150 paid Batterton for the quarter ending December 31, 1893. This was the quarter following the judgment in favor of Batterton, and before the new trial was granted, and was evidently allowed to the county upon the theory that, having been paid by it after judgment in Batterton's favor, it was properly paid. We may add that the order granting a new trial, referred to in the fifth finding, was, on appeal to this court, affirmed. The case is reported under the title of Batterton v. Fuller, 60 N.W. 1071. Prior to the trial the court, on motion of plaintiff's counsel, struck out three paragraphs of the answer, to which the defendant excepted, and it now assigns as error the ruling...