State ex rel. Gravitt v. Kellett
| Decision Date | 06 June 1935 |
| Docket Number | 7 Div. 335 |
| Parties | STATE ex rel. GRAVITT v. KELLETT. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, DeKalb County; A.A. Griffith, Judge.
Quo warranto by the State, on the relation of Claris L. Gravitt against J.C. Kellett. From a judgment sustaining a demurrer to the information and dismissing it, relator appeals.
Affirmed.
Bailey & Stephens and McCord & McCord, all of Gadsden, and F.E. St John, of Cullman, for appellant.
Scott & Dawson, Haralson & Son, Baker & Baker, J.V. Curtis, and J.A Johnson, all of Fort Payne, Hugh Reed, of Center, and Claud Scruggs, of Guntersville, for appellee.
Proceedings in the nature of quo warranto, by the state of Alabama, on relation of Claris L. Gravitt, against J.C. Kellett, seeking to oust the latter from the office of judge of probate of DeKalb county, and also to have it "legally declared" that one G.L. Malone is entitled to the immediate possession of said office and to exercise the duties thereof, and to receive the emoluments of the same until the result of the election held on November 6, 1934, is fully determined, and the party duly elected has duly qualified.
It is charged in the second paragraph of the complaint or information that the respondent, Kellett, since the 2d day of February, 1935, "has usurped, intruded into and unlawfully holds or exercises the office of Probate Judge in said county of DeKalb and State of Alabama, and is now unlawfully holding said office and enjoying the emoluments thereof."
It further appears from the information that the said G.L. Malone was the judge of probate of said county on the 6th day of November, 1934, and that his term of office did not expire until January 14, 1935; that at the general election in said county on November 6, 1934, the respondent and one W.A. Mitchell were the opposing candidates for said office; but that the result of said election has never been fully determined between said parties; that a contest was filed by the said J.C. Kellett against said Mitchell for the office, but which contest remains undetermined, and is still pending in the circuit court.
It is averred "that by reason of the pendency of said contest and the indetermination thereof by the court, the said G.L. Malone, who was legally exercising the duties, and in possession, of the office of Probate Judge for the preceding term, and who was in possession of said office and so exercising said duties and receiving the emoluments thereof at the time of holding said election on November 6th, 1934, and at the time of instituting said contest on November 27th, 1934, is the rightful and legal Probate Judge of DeKalb County at this time and until the result of said election shall have been fully determined and the party duly elected shall have been duly qualified."
It may be, and is, conceded that the averment of the information as to the wrongful usurpation of said office by the said Kellett, contained in paragraph 2 of the petition, is sufficient to meet the requirements of good pleading, if the relator had limited the relief sought to ousting the alleged encumbent. Sharp v. State ex rel. Elliott, 217 Ala. 265, 115 So. 392; Jackson v. State ex rel., 143 Ala. 145, 42 So. 61; Frost v. State ex rel., 153 Ala. 654, 45 So. 203; State ex rel. Knox v. Dillard, 196 Ala. 539, 72 So. 56; Longshore v. State ex rel., 200 Ala. 267, 76 So. 33.
However, the relator was not content to test the title of the respondent to the office, but undertook also, as the statute permits, to have the court to judicially determine that another was entitled to the office. This being true, he thereby assumed the burden, not only of pointing out the defects in the respondent's title, but also to show that the one whom he undertakes to have inducted into the office was legally entitled to its possession. 22 R.C.L. § 41, p. 718; Baker et al. v. State ex rel. Green et al., 222 Ala. 467, 133 So. 291; Ham v. State ex rel. Buck, 156 Ala. 645, 47 So. 126.
The information filed in this cause is but a single pleading having a dual purpose, i.e., the exclusion of the respondent from office of judge of probate of DeKalb county, and the induction therein of Judge Malone, pending a determination of a contest as to who was elected to said office at the election held on November 6, 1934.
It appears from the information that said contest had not been determined, and that the result of the election of a successor to Judge Malone still remains undetermined.
The respondent filed demurrers to the information or complaint, and separately to its aspects to oust the defendant from the office of judge of probate of DeKalb county, and to induct Judge Malone into said office, and "to each count thereof, separately and severally." The demurrer was properly addressed to the information as a whole, and to each of its separate aspects.
The court sustained the respondent's demurrer,...
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