Howison v. Weeden

• Decision Date: 20 September 1883
• Citation: 77 Va. 704
• Parties: HOWISON v. WEEDEN.
• Court: Virginia Supreme Court

77 Va. 704

HOWISON v. WEEDEN.

Supreme Court of Appeals of Virginia.

September 20, 1883

On petition of Charles G. Howison for a writ of mandamus to compel John C. Weeden to surrender to him the office of judge of the county court of Prince William county. The facts are fully stated in the opinion.

Attorney-General F. S. Blair, for the petitioner.

No counsel for the respondent.

OPINION

RICHARDSON J.

This is a question as to whether the petitioner, Charles G. Howison or the respondent, John C. Weeden, is rightfully entitled to the county judgeship of the county of Prince William. The facts are briefly these: In December, 1873, Aylett Nicol was elected by the general assembly of Virginia, as provided by the constitution, judge of the county court of said county and was duly commissioned as such by the governor of Virginia for the term of six years, commencing on the 1st day of January, 1874, and duly qualified and entered upon the discharge of the duties of his said office, and continued therein until his death, which occurred on the 10th day of March, 1878; by reason of which death a vacancy occurred in said judicial office during the regular constitutional term for which said Nicol had been elected.

On the 13th day of March, 1878, John C. Weeden, the respondent, was elected by the general assembly judge of said county court, to fill the vacancy occasioned by the death of Judge Nicol, and was commissioned accordingly by the governor of Virginia. At the time said Weeden was elected to supply said vacancy, there remained of the regular term, to which his predecessor, Judge Nicol, had been elected, less than three years; in other words, the term of six years, for which Judge Nicol had been elected, expired with the last day of December, 1880. The general assembly, doubtless under the view that Judge Weeden had only been elected for the unexpired term of his predecessor, and not for a full term of six years, on the 21st day of January, 1880, elected the petitioner, Charles G. Howison, judge of said county, to succeed said Weeden, and for the regular term of six years, commencing on the 1st day of January, 1880; and said Howison was duly commissioned, qualified, and actually entered, or attempted to enter, upon and proceed with the discharge of the duties of his said office, but under circumstances material to the consideration of the claim now asserted by him, and hereinafter again to be referred to.

It appears that the petitioner was again elected to said office by the general assembly of Virginia on the 7th day of March, 1882, and was again commissioned, and qualified. The record does not distinctly disclose the circumstances under which this second election was had, nor is it material in our view of this case that such circumstances should appear.

The petitioner on the face of his petition says: " That while this court did, in ex parte Meredith, 33 Gratt. 119, pass on his first election and commission, yet his second election has never been passed upon, and that he was, moreover, no party to the case referred to." And the petitioner further avers, that notwithstanding the term of office for which said Weeden was elected expired according to law with the 31st day of December, 1879, yet after that time, and continuously until the filing of his petition, the respondent has intruded into and now occupies the said office of judge of said county court of Prince William contrary to law and to the prejudice of petitioner's rights, notwithstanding petitioner's formal demand that the same be surrendered to him. And the petitioner's prayer is for a writ of mandamus to compel the surrender of said office and emoluments to him as the rightful judge of said Prince William county.

The respondent makes answer and says that he was on the 13th day of March, 1878, duly elected by the legislature of Virginia judge of the county court of Prince William county; that he was duly commissioned as such, and that on the 26th day of March, 1878, he qualified according to law, and has held the office of judge of said court ever since, as may be seen by the records of this court on file in the clerk's office thereof in the city of Richmond.

And the respondent for answer further says, that the petitioner, Charles G. Howison, has once before contested the title to the office of judge of the county court of Prince William county with respondent, and that this court has already decided that the said Howison was not entitled to the said office, but that the respondent, the said Weeden, was, and still is entitled to the said office; that he was elected for, and entitled to hold the said office for the full constitutional term of six years, which term has not yet expired; that the question was determined by this court in the case of ex parte Meredith, supra, and that the matter has been once decided between the petitioner and himself by this court, it is now res judicata, and cannot be enquired into. To this answer the petitioner demurred, and the question thus raised must be now determined by this court.

If the matter contained in the answer be sufficient, if, in other words, the same subject matter has been once fully passed upon, and the sentence of this court pronounced between the same parties or their privies, then it is res judicata, and as such, final and conclusive, however erroneous and unjust that sentence may have been, and however much this court may now depricate the evils that flow from that former sentence.

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