Preshaw v. Dee

• Decision Date: 04 March 1890
• Citation: 23 P. 763,6 Utah 360
• Court: Utah Supreme Court
• Parties: S. M. PRESHAW, APPELLANT, v. THOMAS D. DEE, AND OTHERS, RESPONDENTS

23 P. 763

6 Utah 360

S. M. PRESHAW, APPELLANT, v. THOMAS D. DEE, AND OTHERS, RESPONDENTS

Supreme Court of Utah

March 4, 1890

APPEAL from a judgment of the district court of the first district.

The answer of the defendants Dee and Stanford was joint, but they separately pleaded a misjoinder of defendants as to themselves. The findings were silent as to any misjoinder of defendants, as a conclusion of law, but found as facts that the plaintiff claimed to be justice of the peace of the whole Ogden precinct, but that said defendant Stanford claimed to be and was exercising the functions of justice of the peace for Ogden precinct No. 3, a part of what was Ogden precinct and said defendant Dee was in the same position for Ogden precinct No. 4, part of what was Ogden precinct, and the said defendants were separately appointed and commissioned.

Section 3534 infra is as follows: "When several persons claim to be entitled to the same office or franchise, action may be brought against all such persons, in order to try their respective rights to such office of franchise." The remaining facts are found in the opinion.

Affirmed.

Mr. A R. Heywood and Messrs. Boreman and Rogers for the appellant.

Messrs Sutherland and Judd and Mr. H. H. Rolapp for the respondents.

HENDERSON, J. ZANE, C. J., and BLACKBURN, J., concurred.

OPINION

HENDERSON, J.

This action was brought in the first district court for usurpation of office (quo warranto). The complaint avers the plaintiff was on the 5th day of August 1889, duly elected to the office of justice of the peace of Ogden precinct, setting out the boundaries and extent of the precinct; that he afterwards qualified, and is entitled to such office and emoluments; "that on September 3, 1889, the defendants and each of them, usurped said office, and have ever since continued so to do." The facts are that the county court of Weber county, on the 7th day of August, 1883, created Ogden precinct, the same as set out in the complaint. On the 5th day of August, 1889, the plaintiff was duly elected justice of the peace of said precinct, and on September 2, following, he qualified as such. On the 20th day of August, 1889; the county court of Weber county, by an order, abolished said Ogden precinct, and out of the territory embraced therein created four separate and distinct precincts, defining particularly their boundaries, and designating them, respectively as "Ogden Precinct, No. 1, 2, 3 and 4." The county court thereupon, by an order entered at the same time for the purpose of filling the vacancies in the office of justice of the peace in each of the said four precincts thus created, appointed the plaintiff herein justice of the peace in and for Ogden precinct No. 1; the defendant, N. Tanner, Jr., for Ogden precinct No. 2; the defendant, Joseph Stanford for precinct No. 3, and Thomas D. Dee for precinct No. 4. Defendant Tanner never qualified under his appointment, and has filed his answer disclaiming any right to the office. Defendants Stanford and Dee at once qualified. Commissions were duly issued to them by the governor, and they entered upon the duties of said office within and for their respective precincts. The plaintiff claims, under his election, to be justice of the peace for the...