State ex rel. Oddle v. Sherman

• Decision Date: 29 February 1868
• Citation: 42 Mo. 210
• Parties: THE STATE OF MISSOURI ex rel. GRAHAM ODDLE, Appellant, v. JOHN D. SHERMAN, Respondent.
• Court: Missouri Supreme Court

42 Mo. 210

THE STATE OF MISSOURI ex rel. GRAHAM ODDLE, Appellant,

v.JOHN D. SHERMAN, Respondent.

Supreme Court of Missouri.

February Term, 1868.

Appeal from Fifth District Court.

The facts material to the case appear in the opinion of the court.

Asper & Pollard, for appellant.

I. The court below erred in reversing the judgment of the Circuit Court on the ground that the information did not set out the ordinance of the city of Chillicothe by which the office of treasurer was created, for the following reasons: 1. The charter, which is well pleaded, gives ample authority to appoint or elect a treasurer, and no ordinance is required to create the office. The reference to the ordinance No. 8 is mere surplusage. Section 23 of the charter of Chillicothe--printed charter and ordinances, p. 6--reads as follows: “The mayor and board of councilmen shall have power to appoint a city register, assessor, collector, and such other officers as they may at any time deem necessary, who shall be sworn faithfully to discharge the duties of their offices, and shall, when required, give bond, with satisfactory security, to the corporation, for the due performance of their respective duties.” This section gives ample power to appoint; and the petition shows that the authority was pursued. 2. The information sets out that Graham Oddle was duly appointed to the office of treasurer of Chillicothe; that he qualified and gave bond, with security, which was approved by the council--which are facts that, if not denied, give him title to the office. These facts make a full and perfect title, and are admitted by the demurrer. If the information alleges that the relator was duly appointed and qualified, it contains facts sufficient. 3. In setting out this title it was not necessary to set out the ordinance creating the office or appointing the treasurer. The title sufficiently appears without it. General certainty is sufficient; and pleadings are to be liberally construed with regard to doing substantial justice. (Gen. Stat. 1865, p. 661, § 37; Bersh v. Dittrick, 19 Mo. 129; Beman v. Tugnot, 5 Sandf. 153; How. Prac. 267.)

II. The court below committed no error in sustaining motion of relator to strike out and make answer more definite and certain, because: 1. The answer denied the relator's title, and at the same time justified holding the office. The answer was inconsistent. It created an issue in which the relator held the affirmative, and at the same time stated another issue in which the respondent below held the affirmative. This is not allowable. (Gen. Stat. 1865, p. 659, § 14; id. p. 661, § 39; Houston v. Lane, 39 Mo. 495; Darrett v. Donnelly, 38 Mo. 492; Adam's Adm'r v. Trigg, 39 Mo. 141; Burnet v. Wagner, 39 Mo. 385; Atterbury v. Powell, 29 Mo. 429.) 2. That portion not stricken out was indefinite and uncertain, and the precise nature of the allegations or the denials was not apparent. The refusal to comply with the order of the court left the party without answer. He took leave to answer, and then refused to file one. (Gen. Stat. 1865, p. 660, § 20.)

McFerran & Collier, for respondent.

I. The second amended information does not state facts sufficient to constitute a cause of action. The appellant claims his right to the office of treasurer through certain ordinances of the corporation of the city of Chillicothe, referred to in his second amended information, but fails to set out said ordinances, or any part thereof; by reason of which the said information is not sufficient in law to support a judgment against said respondent. (Mooney v. Kennett, 19 Mo. 555; Ang. & Ames on Corp. §§ 719, 758; 1 Blacks. Com. p. 58, § 86; 1 Chitty's Plead. 247.)

II. The acts of usurpation by respondent are not set out, nor a vacancy alleged in the office at the time of the assumed appointment of appellant to the office, nor is there an allegation that the appellant was appointed as the successor of respondent in said office. (Drome v. Scammel, 7 Cal. 393; U. S. Dig. vol. 19, p. 588, § 15; Ang. & Ames on Corp. §§ 719, 758.)

III. The information must state the facts constituting the appellant's right to the office as his cause of action against the respondent. (Gen. Stat. 1865, p. 658, § 3; U. S. Dig. vol. 13, p. 559, §§ 1, 2; 23 Wend. 193; 4 Cow. 106, 108, 297;Ang. & Ames on Corp. 719, 758; U. S. Dig. vol. 23, p. 446, and cases cited.)

IV. The information does not show any right in the mayor and councilmen to appoint appellant treasurer of the city of Chillicothe. It does not appear who composed the council that counted the vote and installed them into office as councilmen for said city. It must appear that a majority of the council was present, before the act can have any legal vitality. (2 Wheat. Sel. 1178, 1179.)

V. The court below had no power to require the respondent to make his answer more definite and certain, without specifying and deciding wherein it was indefinite and uncertain.

VI. The charter and amendments of the incorporation of the city of Chillicothe are not well pleaded in the second amended information. Said charter and several amendments thereto are referred to by their title and the day of their passage, which simply enables the court to take judicial notice thereof; but it is not alleged in said information what act or acts were done by authority of the several statutes aforesaid respectively. (Gen. Stat. 1865, p. 661, §§ 40, 41.)

HOLMES, Judge, delivered the opinion of the court.

This was an information, in the nature of a quo warranto, filed in the Circuit Court of the county of Livingston. The information alleged, in substance, that certain persons named were, on the second day of April, 1867, duly elected mayor and councilmen of the city of Chillicothe, and that on the third day of May thereafterward the said mayor and councilmen appointed the relator treasurer of the city, and that he was duly qualified to and entered upon the duties of the office, but that the defendant had unlawfully usurped said office, and judgment of ouster was demanded against him. A demurrer to the information was overruled.

The first part of the answer consisted of specific denials of the material allegations of the information; the second part contained a statement of the title and right under which the defendant claimed.

A motion to strike out certain portions of the answer, including the whole of the second portion, as above, was sustained, and the court required the defendant to make the remaining part more definite and certain. The relator's motion had assigned no reasons for striking out this part, nor in any way pointed out wherein it was deemed indefinite and uncertain. The defendant declining to amend his answer in this respect, a judgment by default was given against him as for want of an...