Mitchell v. Finley
| Decision Date | 02 November 1931 |
| Docket Number | 29521 |
| Citation | 137 So. 330,161 Miss. 527 |
| Court | Mississippi Supreme Court |
| Parties | MITCHELL v. FINLEY |
1. Quo WARRANTO.
"Quo warranto proceeding," on relation of claimant to office is a proceeding to remove therefrom person unlawfully holding office and establish relator's right to office and Induct him into office.
2. Quo WARRANTO. In quo warranto proceeding, defendant held properly taxed with all costs accruing before filing of his plea disclaiming further claim to office.
While depositions of witnesses were being taken in the case respondent tendered his resignation as chancellor of district, and instructed his attorneys to appear before commissioner appointed to take depositions and inform him and relator that his resignation had been tendered and accepted, and that he would make no further claim to the office. The taking of depositions was then adjourned, but subsequently resumed at instance of relator, and subsequently respondent filed a plea in the proceeding setting forth that he had resigned and that his resignation had been accepted.
3. APPEAL AND ERROR.
Questions not presented to lower court cannot be raised in Supreme Court.
4. APPEAL AND ERROR.
1 Cross-assignment of error would be treated as abandoned, where no brief or argument was offered in support thereof.
APPEAL from circuit court of Tishomingo county HON. C. P. LONG, Judge.
Quo warranto proceeding by James A. Finley against Alvis M. Mitchell. Decree was rendered for plaintiff, and, from an order overruling a motion to retax the costs, a direct and cross-appeal was prosecuted. Affirmed.
Affirmed.
C. A. Bratton, and J. B. Fontaine, both of Pontotoc, and Paine & Paine, of Aberdeen, for appellant.
The only statutes dealing with the question of cost which are applicable in this case are Sections 3062 and 3064, Code of 1930. A careful reading of both these sections in connection with Section 3061 indicate that the cost is to be taxed as in any other civil suit in the circuit courts.
If the judgment be in favor of the relator he shall be entitled to the office on qualifying according to law and may recover of the defendant in an action all damages which may have accrued in consequence of withholding the office.
If the judgment be against the defendant, finding that he has been exercising the functions of an office without authority, he shall be removed from the office and debarred therefrom and pay cost.
The appellant had resigned the office and his resignation had been accepted the case was ended so far as he was concerned and the appellee was not entitled to any judgment against appellant except the taxation of the cost up to the date he resigned and notified appellee and his counsel that he had resigned.
A quo warranto proceeding of this character is in the nature of a, double barrel action; the relator seeks first to have the incumbent in office removed and debarred from office and second to recover the office himself.
The only purpose of requiring a litigant to file a plea such as was filed in this case is to have a record in court of the fact that the defendant no longer is in office and no longer contends for the right to hold the office. If these facts are brought to the attention of the court by any other method so that the court and the adverse party could rely on the fact of the resignation of the party from office and the fact that he is no longer in office, then the necessity for strict adherence to the law with reference to filing the special plea should not be required.
When a cause shall be determined the clerk of the court and the justice of the peace in cases had before him shall tax the costs of the case and make out a bill thereof, specifying therein each section of the law, and each paragraph or subdivision of section, if any, by virtue of which each fee of item of cost therein is charged or taxed, and he shall file the same with the papers in the case.
The fees and cost shall not be payable by any person until there be produced to the person chargeable with the same a bill, or account in writing, containing the particulars of such fees signed by the clerk or officer in which shall be intelligently expressed and specified each section of the law, and if any, each paragraph or subdivision of section by virtue of which each fee is charged.
The item of services of stenographer in the cost bill is not itemized or particularized in any manner and there is no law authorizing a stenographer's bill to be taxed in a lump sum in the manner that this item is set out. The only compensation allowed for taking testimony and transcribing the same is under section 1796, supra and is at the rate of ten cents per hundred words.
Leftwich & Tubb, of Aberdeen, and Mitchell & Clayton, of Tupelo, for appellee.
If judgment be against the defendant, finding that he has been exercising the functions of an office without authority, he shall be removed from office and debarred therefrom, and shall pay costs.
The judge, before making the order for trial in vacation or afterward, may impose such terms and make such requirements as to costs and payment thereof as security therefor, as he may think proper, and shall tax the costs of the case as he may deem just.
Either of the above sections require that the cost be taxed against the usurper of an office.
A judgment was necessary to induct appellee into the office of which he had been deprived by the conduct of appellee.
The action of the appellant in resigning the office after taking of depositions had begun did not terminate the case or entitle the appellee to the office.
A quo warranto proceeding is for two purposes, one to oust the usurper and the other to induct the party entitled to the office into same. Nothing short of a judgment can accomplish this. No resignation or action of the incumbent short of an agreement that judgment might be entered in favor of his adversary could end the litigation or affect the duty of relator to procure his evidence and submit it to the court for a judgment.
Section 682, Code of 1930, gives the trial court discretionary powers in taxing costs in certain cases. The Supreme Court will not interfere with the discretion of the trial court exercised under this section. This is analagous to the section here involved.
Bernheim v. Winston, 28 So. 28.
An award of costs is an act of the court, but the taxation thereof is a mere ministerial act to be performed in most jurisdictions by the clerk of the court.
15 C. J. 176; Bacot v. Holloway, 140 Miss. 120.
Argued orally by Carl Bratton, for appellant.
The appellant, Alvis M. Mitchell, and the appellee, James A. Finley, were candidates for chancellor of the First chancery court district of Mississippi at a special election held on the 5th of November, 1929. According to the final returns certified to the secretary of state by the election commissioners, the appellant was declared elected, and the Governor issued a commission to him; and he thereupon qualified as chancellor by taking the oath of office, and immediately entered upon the performance of the duties of the office of chancellor of the said district.
On the 21st day of November, 1929, the appellee filed a quo warranto proceeding in the circuit court of Tishomingo county, setting up the returns of the special election to the secretary of state, the issuance of the commission to the appellant, and that acting thereunder the appellant had qualified and was acting as chancellor. The petition further charged that there was fraud in the holding of the election at two named voting precincts of Amory in Monroe county; that at the North Amory precinct the appellant received 339 votes, of which at least 225 were illegal; that without these illegal votes the appellee received a plurality of the votes cast in this special election, and therefore he should have been declared elected and should have been commissioned as chancellor of said district; and prayed that the court inquire into the mode and manner of holding said election, and ascertain and determine the number of legal votes actually cast for the respective parties, and determine their respective rights to the said office, and that the appellant be ousted from said office, and relator, the appellee, be inducted into the office.
Upon the orders of the circuit judge, the box of the North Monroe precinct was sealed and impounded, and on December 7, 1929 in the presence of the...
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