Schaeffer v. Jackson
| Citation | 106 Okla. 194,225 P. 961,1924 OK 41 |
| Decision Date | 15 January 1924 |
| Docket Number | Case Number: 14562 |
| Parties | SCHAEFFER v. JACKSON. |
| Court | Supreme Court of Oklahoma |
Commissioners' Opinion, Division No. 4.
Error from District Court, Stephens County; M. W. Pugh, Judge.
Action brought by J. W. Schaeffer to procure a writ of mandamus against J. B. Jackson. Judgment by the court in favor of the defendant and against the plaintiff, to which ruling of the court the plaintiff excepted, and appeals to this court. Affirmed.
¶0 1. Mandamus--Pleadings -- Sufficiency of Alternative Writ.
The only pleadings allowed in a mandamus proceeding are the alternative writ and the answer or return thereto. And where such alternative writ sets up that the plaintiff has been appointed to the office of clerk of a consolidated school district to fill a vacancy caused by the removal of the defendant from such office by the superintendent of public instruction, and that such predecessor refuses to deliver up the books, papers, seal, and paraphernalia of the office, and fails to allege that such removal was for any of the causes mentioned in section 10353, Comp. Stat. 1921, such alternative writ is insufficient to warrant the court in granting the peremptory writ.
2. Same.
An alternative writ of mandamus must show on its face a clear right to the relief demanded and must distinctly set forth all the material facts upon which the plaintiff relies, so that the same may be admitted or traversed. If it fails to do this, it is fatally defective.
3. Officers--Removal--Statutory Grounds.
Where a statute provides that an officer may be removed for certain specified causes, the order of removal must be based upon some one or all of such causes, and cannot be made for other causes.
Commissioners' Opinion, Division No. 4.
Error from District Court, Oklahoma County; George W. Clark, Judge.
Action by S. C. Axtell against Ross E. Thomas & Sons, for recovery of alleged commission for the sale of real estate. Judgment for plaintiff. Defendant brings error. Modified and affirmed.
Womack, Brown & Cund, for plaintiff in error.
Sandlin & Winans, for defendant in error.
¶1 On the 16th day of May, 1923, upon the application of the plaintiff in error, J.W. Schaeffer, the district court of Stephens county issued an alternative writ of mandamus against the defendant in error, J. B. Jackson. The parties will be hereafter referred to as plaintiff and defendant, as they appeared in the trial court.
¶2 It is set out in said alternative writ, in substance: (1) That the plaintiff was, on the 24th day of April, 1923, appointed to the office of clerk of consolidated school district No. 21 of Stephens county by the superintendent of said county.
¶3 On the 23rd day of May, 1923, the defendant filed his answer and return to said alternative writ: (1) Challenging the sufficiency thereof; (2) denying each and every allegation therein contained; and, (3) set up that the defendant was in the full possession of said office and performing all of his duties as such officer.
¶4 The court denied the peremptory writ and dismissed the case, and the plaintiff has appealed to this court, and assigns as error the overruling of his motion for judgment on the pleadings, and the judgment of the court denying the writ. It is admitted by the pleadings that the defendant was the duly elected and acting clerk of said consolidated school district. The plaintiff, however, contends that said defendant was removed from that office, and the plaintiff was legally appointed thereto.
¶5 The proceedings were had under the provisions of section 10353, Comp. Stat. 1921, as follows:
"Every person duly elected to the office of director, clerk, or member of any school board who shall refuse or neglect without sufficient cause to qualify, within twenty days after his election or appointment, or who having entered upon the duties of his office shall neglect or refuse to perform any duty required by the provisions of this article, shall thereby forfeit his right to the office to which he was elected or...
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