State ex rel. Freeman v. Carvey

• Decision Date: 26 November 1915
• Docket Number: No. 30624.,30624.
• Citation: 175 Iowa 344,154 N.W. 931
• Parties: STATE EX REL. FREEMAN v. CARVEY.
• Court: Iowa Supreme Court

175 Iowa 344

154 N.W. 931

STATE EX REL. FREEMAN

v.CARVEY.

No. 30624.

Supreme Court of Iowa.

Nov. 26, 1915.

Appeal from District Court, Buchanan County; H. B. Boies, Judge.

The opinion sufficiently states the case. Reversed.Hasner & Hasner, of Independence, for appellant.

R. J. O'Brien, of Independence and Edwards, Longley, Ransier & Smith, of Waterloo, for appellee.

WEAVER, J.

Jesse Lyon was a member of the board of supervisors of Buchanan county for the term ending January 2, 1915, and at the general election held in November, 1914, he was re-elected to succeed himself, but died on or about December 1, 1914. On December 16, 1914, the county auditor, county recorder, and clerk of the district court, under the statute authorizing such action (Code, § 1272), met and appointed the relator herein, D. M. Freeman, to fill the vacancy created by the death of Lyon. Relator was a citizen of the county and eligible to the office. On the same day relator executed and filed his official bond with the usual oath of office, and acted as a member of the board of supervisors until and including January 1, 1915. On January 2, 1915, the county auditor, recorder, and clerk again met and appointed respondent herein, D. C. Carvey, to fill the vacancy caused by Lyon's death in the office for supervisor for the term beginning January 2, 1915. Two days later respondent, who was also a citizen of the county and eligible to the office, qualified under the appointment by filing his official bond and oath of office and entered upon the duties of the position. On January 26, 1915, the relator served a written demand upon the county attorney that he bring an action in quo warranto to oust the respondent from the office of supervisor. The county attorney refused to proceed as requested, and thereupon on January 28, 1915, relator, having prepared the petition in this case, presented it to Hon. C. W. Mullan, judge of the district court, who indorsed thereon permission of the relator to prosecute such action. On February 2, 1915, the action was begun by filing the petition in the clerk's office.

The petition sets out the facts substantially as we have stated them. Respondent, appearing, filed an answer in which he admits that the county attorney had refused to bring the action; admits the death of Lyon while in office as supervisor for the term ending January 2, 1915, thereby creating a vacancy in the office for the remainder of that term; admits that the relator was appointed to fill said vacancy, was eligible thereto, and duly qualified therefor; admits that relator took possession of the office and discharged the duties thereof until January 2, 1915; admits that before his death the said Lyon above mentioned had been elected supervisor for the term beginning January 2, 1915, and that on said day, there being a vacancy in the office for said term, the appointing board for the county appointed the respondent to fill the same, and that he thereupon qualified for the office as provided by law, and thereby became entitled to hold the said office until the next election at which his successor could be chosen. He further alleges that the relator never qualified as required by law to hold the office, except under the appointment of December 16, 1914, and that the bond and oath then filed by him constitute the only qualification he has made or attempted at any time. He also denies all matters alleged in the petition and not in the answer admitted.

These pleadings having been filed, the relator filed a motion for judgment thereon in his favor, stating as grounds therefor that the petition and answer show clearly and conclusively that, as the person named in the appointment of December 16, 1914, the relator is entitled to hold the office until the vacancy is filled at a regular election, and that the appointment of the respondent is therefore void. Respondent thereupon moved to strike the foregoing motion from the files because the only proper way to raise such objection to a pleading is by demurrer. The court overruled the motion to strike, and sustained the motion for judgment in favor of the relator. The respondent appeals.

[1] I. We are first met with a question of pleading and practice. It is appellants' position that his motion to strike appellee's motion for judgment should have been sustained. A motion to strike another motion is not provided for in our practice act, and is not to be approved. If there be any reason why a motion should not be considered or should be denied, it constitutes sufficient reason why it should be overruled. A motion to strike in such case only incumbers the record.

[2] The objection that the motion for judgment presented only such questions as could have been settled by demurrer is not well taken. Possibly a demurrer to the answer would have reached the same end, but we think, under the practice prevailing in the trial courts of the state, if it was the relator's judgment that the allegations of the answer raised no issue of fact to be tried, and that the allegations of both petition and answer, being all taken as true, entitled him to the relief prayed, it was competent for him to move for judgment on the pleadings, and there was no prejudicial error in entertaining the motion. Whether the ruling sustaining the motion and entering judgment for the relator can be sustained is another question which we shall consider in the next paragraph of this opinion. It is no sufficient objection to this holding that, if the relator had demurred, opportunity would have been given respondent to amend, if so advised. Motions attacking a pleading are frequently given effect as demurrers, and an order sustaining such a motion has never been held to deprive the pleader of the chance to amend if he indicate such a desire. We must assume that, if appellant in this case had wished to amend, he would have said so, and that leave would have been given. No such request was made. But it is said that the answer contained a general denial, and, such being the case, neither demurrer nor motion for judgment would lie. There was no general denial. The answer denies nothing in the petition, except those allegations “not expressly herein admitted,” and then proceeds to admit practically all the matters alleged by the relator. The very general character of the admissions and the qualified character of the denial are such that it may fairly be said the latter raises no material issue upon any pertinent fact. Of the new or affirmative matters pleaded in the answer it is to be said the motion for judgment necessarily admits the truth thereof. The petition and answer, taken together, disclose no material disputes of fact. The real question presented is one of law, and there was no error in so treating it.

[3] II. The real question before us may be briefly stated as follows: Under the conceded facts was the relator's appointment to the office of supervisor an appointment to a vacancy ending with that term January 2, 1915, or did he by such appointment acquire the right to hold the office until the vacancy could be filled at the next general election?

The cases treating questions having more or less likeness to the one we have here stated are very numerous, and are to be found in the decisions of the courts of many jurisdictions. Upon no one phase of these contests does there seem to be an entire consensus of opinion, and upon many it is impossible to reconcile the precedents. To some extent the apparent disharmony has its rise in the varying provisions of state Constitutions and statutes, and in order to keep our discussion within bounds it is well that we recall at the outset what our written law has to say in this regard.

Section 6 of article 11 of the Constitution of Iowa reads as follows:

“In all cases of elections to fill vacancies in office occurring before the expiration of the full term, the person so elected shall hold for the residue of the unexpired term; and all persons appointed to fill vacancies in office, shall hold until the next general election, and until their successors are elected and qualified.”

In Code, § 1266, the Legislature defines “vacancy” and when it shall be deemed to exist as follows:

“Every civil office shall be vacant upon the happening of either of the following events”:

1. Failure to elect at the proper election;

2. Failure of the incumbent or hold-over officer to qualify within the time prescribed by law;

3. The incumbent ceasing to be a resident;

4. The resignation or death of the incumbent;

5. His removal from or forfeiture of office;

6. His conviction of an infamous crime; and

7. Acceptance of another office.

It is further enacted that:

“Except when otherwise provided, every officer elected or appointed for a fixed term shall hold office until his successor is elected and qualified, unless he resigns, or is removed or suspended, as provided by law.” Code, § 1265.

Also:

“The term of office of all officers chosen at a general election for a full term shall commence on the second secular day of January next, thereafter, except when otherwise provided by the Constitution or by statute; that of an officer chosen to fill a vacancy shall commence as soon as he has qualified therefor.” Code Supp. 1913, § 1060.

A county supervisor is required to give bond (Code Supp. 1913, § 1182a), and in common with other elected officers he is to file this bond with his oath of office before noon of the second secular day of January after the election. Code, § 1177. When, however,

“it is ascertained that the incumbent is entitled to hold over by reason of the nonelection of a successor, or for the neglect or refusal of the successor to qualify, he shall qualify anew, within the time provided by section 1275 of the Code.” Code Supp. 1913, § 1195.

Turning to the cited section 1275 of the Code, we find it reads as follows:

“Persons elected or appointed to fill vacancies, and officers entitled to hold over to fill...