Hathcock v. McGouirk

• Decision Date: 11 May 1904
• Citation: 47 S.E. 563,119 Ga. 973
• Parties: HATHCOCK v. McGOUIRK.
• Court: Georgia Supreme Court

47 S.E. 563

119 Ga. 973

HATHCOCK v. McGOUIRK.

Supreme Court of Georgia

May 11, 1904

Syllabus by the Court.

1. It was not error to refuse a continuance because of the absence of a nonresident witness; nor because of the illness of the respondent's brother, the court assuring the respondent that, should he receive information that his brother's condition demanded his presence, the trial of the case would be suspended.

2. An application for leave to file a quo warranto, reciting that at an election for sheriff of a named county, held on a given day, the applicant received a majority of the votes cast which fact was duly certified by the proper authorities that, notwithstanding, his opponent was given a commission by the Governor of the state, under which he took possession of the office, and was exercising the privileges and receiving the emoluments thereof, without lawful authority and in utter disregard of the rights of the applicant; and that the term of office for which applicant was elected has not expired etc.-- is not demurrable on the ground that the application does not set forth a cause of action, or on the ground that the superior court of that county is without jurisdiction to entertain the same, or on the ground that the applicant's remedy was to have contested the election, and the commission issued by the Governor to the respondent was conclusive as to his right to hold the office.

(a) The motion to dismiss the proceeding and the motion to vacate the order directing the writ to issue embraced substantially the same matters set up by way of demurrer, and were properly overruled by the court.

3. The jury provided for in section 4880 of the Civil Code of 1895 may be selected by drawing a panel of 36 jurors from the box purging the panel, and reducing it to 24, and selecting the jury therefrom in the usual way; each party being allowed 6 peremptory challenges.

4. This court will not review the evidence in a case when it is apparent that there has been no bona fide effort to brief the evidence as required by law; nor will it undertake to pass upon assignments of error requiring a consideration of the evidence.

Error from Superior Court, Douglas County; A. L. Bartlett, Judge.

Application by C. W. McGouirk for writ of quo warranto against M. L. Hathcock to try title to the office of sheriff. Judgment for plaintiff, and defendant brings error. Affirmed.

B. G. Griggs and J. S. James, for plaintiff in error.

J. H. Hall, J. H. McLarty, W. A. James, and W. K. Fielder, Sol. Gen., for defendant in error.

EVANS, J. C. W.

McGouirk presented to the superior court of Douglas county an application for a writ of quo warranto to inquire into the right of M. L. Hathcock to the office of sheriff of that county, to which office the applicant claimed he had been duly elected on the first Wednesday in October, 1902. The court passed an order calling on Hathcock to show cause on the 11th day of April, 1903, why the writ should not issue, and service was perfected on Hathcock on April 6, 1903. On April 11, 1903, he appeared and filed both a demurrer and an answer. On the same day the applicant offered an amendment to his application, which was allowed over the defendant's objection. The hearing was then postponed until May 4, 1903, when the case was taken up in connection with other cases of like character, in one of which (that of Harding against Sayer) the court directed that an order be taken granting leave to file an information, "and also announced that similar judgment would be signed in this case." The order in the case of Harding against Sayer was accordingly prepared and signed, but no order in this case was signed until December 5, 1903, the court "anticipating the Sayer case would settle all the questions of law in this case," and nothing further was done until the day last named. On that day a hearing was had on the defendant's demurrer and answer, and the court passed an order overruling the demurrer on all the grounds therein contained, and adjudging and directing that the applicant "have leave to file said information in the nature of the writ of quo warranto to inquire into the right and title of the said M. L. Hathcock to the office of sheriff of Douglas county for the term of two years from the 1st day of January, 1903." The court further adjudged that a question of fact was made by the pleadings, and directed that a jury be drawn as provided by law for the trial of said issue of fact, and that the clerk of the superior court of Douglas county, upon the filing of the information, issue a writ of quo warranto, to be directed to the respondent, requiring him to appear at a special court to be held on the 21st day of December, 1903, and file his answer to said information, and to try the issues of fact as provided by law. The order of the court further directed that Hathcock be served with a copy of the writ of quo warranto and information 10 days before the time set for the hearing. On December 21, 1903, he appeared and filed a motion to vacate and set aside the order passed on December 5th, and also filed a demurrer and answer to the information brought in pursuance of that order, as well as a motion to dismiss the proceeding. The hearing was, by order of the court, continued until January 14, 1904, when the motion to vacate, the demurrer, and the motion to dismiss were heard and overruled, On January 15th, when the case was called for trial, the defendant moved for a continuance, which was refused, and the case proceded to a trial on its merits. The jury returned a verdict in favor of McGouirk. The defendant, Hathcock, thereupon made a motion for a new trial, to which an amendment was subsequently offered and allowed. This motion came on to be heard on January 25, 1904, and on that day the court passed an order overruling the same. On the last-named day Hathcock presented his bill of exceptions, which was duly signed by the judge, and therein assigned error on all the rulings above referred to which were adverse to him. The questions presented by his demurrers and the several motions made by him, including the motion for a new trial, will appear from the discussion of the case which follows, and it is needless to set forth at length the various grounds of these demurrers and motions. The issues raised by the pleadings of the plaintiff and the answers of the defendant will be likewise made to sufficiently appear.

1. Complaint is made by the plaintiff in error that the trial judge improperly refused to grant a continuance because of the absence of a witness. It appears from the record that the absent witness did not reside in the county. So there is no merit in this complaint. A continuance was also asked because of the illness of the respondent's brother. The court assured respondent that, should he receive information that his brother's condition demanded his presence, he would suspend the case. The court did not abuse his discretion in refusing to grant a continuance on this ground.

2. It was insisted by the defendant below that the application for leave to file an information in the nature of a quo warranto set forth facts disclosing that the court was without jurisdiction in the premises, inasmuch as the action of the Governor in issuing a commission to Hathcock was conclusive and could not be inquired into by the courts; that the statutory remedy of contest was exclusive; and that the facts alleged were insufficient to authorize the granting of the applicant's prayer that a writ of quo warranto issue. In brief, the application alleged that at an election for the office of sheriff held in the county of Douglas on the first Wednesday in October, 1902, applicant received 862 votes, and M. L. Hathcock received 755 votes; that after the election the votes were consolidated by the managers thereof, in accordance with the statutes made and provided in such cases, and it appeared from the consolidated returns made by the managers who held the election at the various voting precincts in the county that the applicant had received the votes of 862 legally qualified voters of the county, whereas the said Hathcock had received the votes of...