Goodwin v. Sherer

Decision Date08 February 1906
Citation40 So. 279,145 Ala. 501
PartiesGOODWIN, PROBATE JUDGE, v. SHERER ET AL.
CourtAlabama Supreme Court

Appeal from Circuit Court, Fayette County; S. H. Sprott, Judge.

"To be officially reported."

Mandamus proceedings by J. D. Sherer and others against Thomas E Goodwin, probate judge of Fayette county. From a judgment granting the writ, respondent appeals. Reversed.

C. W Sanders and J. J. Mayfield, for appellant.

J. M. Sherer and R. F. Peters, for appellee.

DENSON J.

This is a proceeding by mandamus to compel the respondent, who is judge of probate of Fayette county, to issue certificates in favor of relators, J. D. Sherer and B. Henry, for mileage and two days' attendance as county commissioners of said county at the regular February term, 1905, of the commissioners' court of said county. It is clearly made to appear by the answer of the respondent to the alternative writ that two other persons, W. H. Brown and W. M. Wright, were elected at the general election held in said county in 1904 to the identical offices claimed by the relators, and that said Brown and Wright were duly commissioned by the Governor as county commissioners of said county for the First and Third districts, respectively; that said Brown and Wright appeared at the regular term of the commissioners' court held on the second Monday in February, 1905, and presented to respondent their commissions as such commissioners for the First and Third districts of said county, demanding that they be allowed to transact the business and perform the duties of commissioners at said term of the court; and that they did perform the duties during said term. It is also shown by the answer that the relators did not perform the services as commissioners at said February term.

Thus we have a case of rival parties claiming title to office, and the answer makes it appear that the proceeding by the relators is an attempt on their part to test the right to office between themselves and the rival claimants by a mandamus proceeding. It is manifest that the respondent before he could have properly issued the certificate to relators, would of necessity have been compelled to pass upon the validity or not of their title to the offices claimed by them, and this, too, in the absence of Brown and Wright as parties to the proceeding. It does not appear from the pleadings that the election and commissions of Brown and Wright are apparently colorable and void. But it appears that Brown and Wright held commissions to the office and were also de facto commissioners. In such state of the case the courts will not interfere by mandamus, but will put the relators in the first instance to an information in the nature of a quo warranto. State ex rel. Mead v. Dunn, Minor, 46, 12 Am. Dec. 25; Ex parte Harris, 52 Ala. 87, 23 Am. Rep. 559; Harmon v. Hamil, 97 Ala. 107, 11 So. 892; Ex parte Du Bose, 54 Ala. 278; Taylor v. Kolb, 100 Ala. 603, 13 So. 779; Anderson v. Colson, 1 Neb. 172; State ex rel. Vail v. Draper, 48 Mo. 213; Rex v. Banks, 3 Burr. R. 1454. Setting up the matter in the answer referred to as respondent's reason for not issuing the certificates did not put the respondent in the attitude of...

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11 cases
  • State ex rel. Graham v. Enking, 6560
    • United States
    • United States State Supreme Court of Idaho
    • August 30, 1938
    ...have a clear legal right to the relief sought, mandamus is not proper here. (38 C. J. 847, sec. 352, and notes 67 to 75; Goodwyn v. Sherer, 145 Ala. 501, 40 So. 279; Heckart v. Roberts, 9 Md. 41; Ohlson Durfrey, 82 Miss. 213, 33 So. 973; State v. Fraker, 166 Mo. 130, 65 S.W. 720.) "The legi......
  • Ex parte Register, 4 Div. 692
    • United States
    • Supreme Court of Alabama
    • June 19, 1952
    ...... Ex parte Harris, 52 Ala. 87, 89; Goodwyn . Page 46. v. Sherer, 145 Ala. 501, 504, 40 So. 279; Beasley v. McCorkle, 237 Ala. 4(5), 184 So. 904. A de facto officer is one who exercises the duties of a de jure ......
  • State ex rel. Haeusler v. German Mutual Life Insurance Company of St. Louis
    • United States
    • Court of Appeal of Missouri (US)
    • December 31, 1912
    ...... joint, a joint action cannot be maintained by them. State. ex rel. v. Fraker, 166 Mo. 130; Goodwin v. Sherer, 145 Ala. 501; State v. Simmons, 50 A. 213; Wright v. Comrs., 6 Mont. 29; High. Extra. Leg. Rem., secs. 434, 439. This defense was not ......
  • Beasley v. McCorkle, 8 Div. 945.
    • United States
    • Supreme Court of Alabama
    • December 8, 1938
    ...... 87, 23 Am.Rep. 559; State ex rel. Mead v. Dunn,. Minor 46, 12 Am.Dec. 25; High Ext. Rem., Sections 49-97;. Goodwyn, Judge of Probate, v. Sherer, 145 Ala. 501,. 40 So. 279. . . However,. in the present case there is no doubt of the petitioner's. right to the office. So, then, we ......
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