In re McCabe

• Decision Date: 25 April 1896
• Citation: 67 N.W. 143,5 N.D. 422
• Parties: In re McCABE.
• Court: North Dakota Supreme Court

5 N.D. 422

67 N.W. 143

In re McCABE.

Supreme Court of North Dakota.

April 25, 1896.

Syllabus by the Court.

Section 7838 of the Revised Codes considered and construed. Said section creates a remedy, and authorizes a proceeding which is summary in its nature, and of a character peculiar to itself. The statute which creates the remedy also establishes the practice which governs the proceeding to obtain the remedy. The statute does not contemplate that the proceeding shall be delayed by appeals from intermediate orders or rulings, and does not authorize any appeal before the entry of judgment. Accordingly, held, that an attempted appeal to this court by the accused from an order of the district court overruling a demurrer to the written accusation will not lie. Such appeal is dismissed.

Appeal from district court, Pembina county; Otto E. Sauter, Judge.

Application by F. C. Myrick and J. D. Gordon for the removal of George H. McCabe from the office of sheriff of Pembina county. From an order overruling the demurrer of the defendant, he appeals. Dismissed.Cochrane & Feetham, J. D. Stack, and W. J. Kneeshaw, for appellant. N. C. Young, State's Atty., for respondent.

WALLIN, C. J.

This is a proceeding for the removal of the appellant from the office of sheriff of Pembina county, and was instituted under the provisions of section 7838 of the Revised Codes, by a written and verified accusation, made by one F. C. Myrick and one J. D. Gordon, accusing the appellant of charging and collecting illegal fees as such sheriff, and of being guilty of other official misconduct. The written accusation was presented to the district court, whereupon the appellant was cited before that court to answer the same. The appellant appeared by counsel in the trial court, for the special purpose of objecting to the jurisdiction of that court. After hearing counsel, the court entered an order overruling said objection, to which ruling an exception was entered. Appellant then moved the court below to strike out the charges and specifications embodied in said written accusation, which motion was denied, and the appellant excepted to the ruling. The appellant then filed a demurrer to said accusation, in writing, basing the same upon various grounds, which were detailed in the demurrer. After hearing counsel, the district court ordered that the demurrer be overruled, to which order appellant excepted. The record further shows that appellant having, through his counsel, in open court, given notice of his intention to appeal to the supreme court from the orders above mentioned, the trial court continued the hearing of the proceeding until such time as this court should pass upon the law questions presented upon the record. The case is sought to be brought into this court by an appeal from the order overruling the demurrer.

In our opinion, the appeal will not lie. It is elementary that the right of appeal is statutory. No such right exists at common law, and hence no case can be reviewed by an appeal to a court of superior jurisdiction, unless some statute gives the right either in express terms or by necessary implication. In this proceeding, there is no statute which allows an appeal from an order overruling a demurrer. In fact, the statute itself contains no provision which, in terms, permits a demurrer to be interposed to the written accusation. The accused is, in terms, required to “answer” the written accusation, a copy of which is served upon him by the state's attorney. The statute makes no reference to a demurrer or to any of the pleadings named in a civil action, save only an answer to the accusation. On the contrary, the enactment throughout distinctly reveals a legislative purpose to make this remedy summary in all its features. A demurrer raises an issue of law, and the trial of such an issue, if regularly brought on, would at least...