Jayne v. Drorbaugh

• Decision Date: 03 December 1883
• Citation: 17 N.W. 433,63 Iowa 711
• Parties: JAYNE v. DRORBAUGH ET AL
• Court: Iowa Supreme Court

17 N.W. 433

63 Iowa 711

JAYNE v. DRORBAUGH ET AL

Supreme Court of Iowa, Des Moines

December 3, 1883

WEDNESDAY DECEMBER 5, 1883.

Appeal from Johnson District Court.

ACTION at law, judgment for the defendants, and plaintiff appeals.

AFFIRMED.

Milton Remley, for appellant.

Boal & Jackson and S. H. Fairall, for appellees.

OPINION

SEEVERS, J.

The petition is as follows:

"The plaintiff states that at the November election, 1880, he was duly elected to the office of supervisor of said Johnson county, and qualified as such officer, and was entitled to discharge the duties of said office, and to receive the compensation pertaining to said office; that said defendant, Drorbaugh, wrongfully obtruded himself into said office to the exclusion of said plaintiff; that said plaintiff brought his action against said Drorbaugh to recover the possession of said office, and such proceedings were had in said action that judgment was rendered therein, on the fifth day of September, 1881, in the district court of Iowa county, state of Iowa, finding said Drorbaugh guilty of unlawfully holding said office, and that he be ousted therefrom, and in favor of said plaintiff, and that said Drorbaugh pay the costs of said suit; that said defendant, Drorbaugh, appealed from said judgment to the supreme court, and filed his supersedeas bond, with the other defendants herein as sureties, a copy of which is hereto attached, marked "Exhibit A," and made a part hereof; that by reason of said bond said plaintiff was prevented from exercising the functions of said office and receiving the compensation belonging thereto; that on the fifth day of April, 1882, the supreme court of Iowa affirmed the said judgment of said district court, but, under the rules of said court, no procedendo could issue for thirty days, and no writ could be procured on said judgment prior to the expiration of thirty days; that the said bond, among other conditions, provided "that said Drorbaugh will pay all costs and damages adjudged against him, will satisfy and perform the judgment or order appealed from in case it shall be affirmed, * * * and all rent, hire, or damage to the property during the pendency of the appeal, out of the possession of which the appellee is kept by reason of the appeal." But the plaintiff avers that said defendant, Drorbaugh, has not satisfied said judgment, which was affirmed, and has not satisfied the said plaintiff for the rent, hire or damages to the property out of which said plaintiff was kept by reason of said appeal; but, on the contrary, the said defendant, Drorbaugh, continued to unlawfully hold said office, and receive the compensation pertaining thereto, from the sixth day of September, 1881, to the present time, in the sum of $ 280.35, which sum, together with the costs of said suit, amounting to $ 25, said defendant has wholly failed to pay in accordance with the conditions of said bond. Wherefore the plaintiff demands judgment in the sum of $ 305.35.

"Second. The said plaintiff, for further cause of action, avers that he was duly elected supervisor of Johnson county, at the November election, 1880, to fill the vacancy occasioned by the removal of one Levi Kiser from the state, and duly took the required oath of office; that said defendants unlawfully maliciously, and with intent to injure the said plaintiff, conspired and confederated together and with one John Doerres, and others whose names are unknown to the said plaintiff, to unlawfully prevent the said plaintiff from exercising the functions of said office, and wrongfully deprive the said plaintiff of the pay and emoluments arising therefrom; that said Bruce Patterson, James B. Strong and Henry Sullivan were in 1880 and 1881, members of the board of supervisors, and in pursuance of said conspiracy they wickedly and corruptly refused to canvass the votes cast for the said plaintiff, or to give him his certificate of election, or to permit the said plaintiff to enter upon the discharge of the said office; that the said plaintiff was compelled to bring an action against the said supervisors to compel them to perform their said duty, and, pending said action, in pursuance of said conspiracy, said defendants procured the pretended appointment of their co-conspirator, said Drorbaugh, to said office, and permitted him to discharge the duties thereof; that the said plaintiff was compelled to bring an action of quo warranto, in order to protect his rights, and, in pursuance of said conspiracy, the said defendants, when the said case was reached for trial, procured a change of venue to Iowa county, in order to secure delay, and vexatiously to put the said plaintiff to expense and trouble in attending court at Marengo; and, when said cause was tried and judgment was rendered against Drorbaugh, to still further harass the said plaintiff and put him to further trouble and expense, said defendants maliciously caused an appeal to be taken, and filed the supersedeas bond, a copy of which is hereto attached, marked "Exhibit A;" that prior to the filing of said bond the said plaintiff procured a writ of ouster and served the same on the defendant, Drorbaugh, but the said defendants refused to recognize the said plaintiff as a member of said board, and prevented him from discharging the duties of said office; that the plaintiff was obliged to bring a further action against said members of the board to compel them to recognize the said plaintiff as a member of said board, and to permit him to act thereon in the discharge of his office, and judgment was rendered against them, ordering a writ of mandamus accordingly, but the said defendants, in pursuance of said conspiracy, filed a supersedeas bond,...