State ex rel. v. Weber
| Decision Date | 15 December 1905 |
| Docket Number | Nos. 14,457-(62).,s. 14,457-(62). |
| Citation | 96 Minn. 422 |
| Parties | STATE ex rel. GEORGE ENGELHARD v. JACOB WEBER.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
J. D. Sullivan and Calhoun & Bennett, for appellant.
Bruener & Klasen, for respondent.
Proceedings in the nature of quo warranto to determine the right to the office of county commissioner of Stearns county. It appears from the record that relator was elected to the office of county commissioner of the Third district of Stearns county at the general election of 1900, and duly qualified and entered upon and continued in the discharge of the duties thereof during the following term of four years. Defendant was elected to the office at the general election of 1904, and on January 1, 1905, duly qualified and entered upon the discharge of his duties. Thereafter, on the theory that defendant was not a citizen of the United States qualified to vote or hold office at the time of his election, and that his election was a nullity, relator, claiming the right to hold over by virtue of his prior incumbency (Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802), commenced this proceeding to oust him. The writ sets out the citizenship of relator, his prior election and qualification, the fact that defendant was not a citizen, and hence not eligible to the office, and other facts upon which his prayer for relief is founded. Defendant answered, expressly denying the citizenship of relator, and affirmatively alleging that he was not and never had been a citizen of the United States, and that by reason thereof he was a usurper in the office, with no lawful right to hold or retain the same. It also alleged that defendant was in fact a citizen, and that he holds and claims to hold the office by virtue of his election thereto in November, 1904. The answer also contains a general denial and was duly verified. Relator moved in the court below, upon affidavits, to strike out the answer as sham and frivolous and for judgment as prayed for in the writ, which motion was granted, and defendant appealed. This statement is sufficient for a general understanding of the issues in the case. Other facts will be mentioned in connection with the discussion of the particular questions presented.
1. The motion to strike out the answer was based upon the claim that it was sham and frivolous, and the question presented in this connection is whether the motion was properly granted on either ground. A sham answer is one that is false and untrue; the word "sham" being construed by the courts as synonymous with "false." A frivolous answer is one that does not, in any view of the facts pleaded, present a defense to the action. 20 Enc. Pl. & Pr. 11, et seq. The answer in this case is clearly not frivolous, for it in fact presents a complete defense to the action, and we have only to inquire whether it is sham. The right of a court to strike out a sham answer, even though verified, is firmly settled by the decisions of this court. C. N. Nelson Lumber Co. v. Richardson, 31 Minn. 267, 17 N. W. 388; Wheaton v. Briggs, 35 Minn. 470, 29 N. W. 170; Stevens v. McMillan, 37 Minn. 509, 35 N. W. 372; Van Loon v. Griffin, 34 Minn. 444, 26 N. W. 601. And though many of the cases, in defining a sham answer, state that it is one shown to be false and untrue, and which appears to have been interposed in bad faith or for the purpose of delay, we do not apprehend that the power of the court to strike out such an answer is limited to cases where bad faith affirmatively appears. Our statutes, which provide for striking out sham and frivolous answers, make no reference to the good or bad faith with which they may have been interposed, but provide for striking the same out upon their falsity being clearly shown. Ordinarily bad faith will be presumed from the fact that the answer is false and untrue. But it is clear that the court has the power to strike out such an answer, even though in fact interposed in the belief of its truth and in good faith, in all cases where the falsity is clearly and unquestionably disclosed. The court will not, however, in any case where a fair doubt exists as to the truth or falsity of the answer, thus summarily dispose of the case, but will leave the parties to litigate the issues in the usual way.
The principal questions of fact presented by the writ and answer in this case are the citizenship of relator and the citizenship of defendant. All other facts necessary to the full determination of the controversy are either admitted or not controverted. There is no dispute respecting the facts going to prove the citizenship of defendant. He was admitted a citizen before the district court of Kandiyohi county, on October 28, 1904, about a week prior to the time of his election and the question whether he was eligible to the office at that time is one of law; so that if the legal conclusion from the undisputed fact just stated be adverse to defendant, and to the effect that because he was not a citizen at least three months prior to the election, he was ineligible to public office, the allegations of his answer that he was a citizen and entitled to vote and hold office at the time of his election are not true. The same may be said with reference to the status of relator. If the affidavits presented on the motion, which are not disputed by defendant, show that he became a citizen in the manner there stated, the allegations of the answer that he is not a citizen are not true. So the question whether the answer was properly stricken out narrows itself down to one of law, to be determined from the undisputed facts presented by the record. The suggestion of counsel for defendant that no opportunity was afforded him to present a counter showing in reference to the citizenship of relator is without special force. If he desired to controvert the affidavits of relator, and the time fixed for the hearing of the motion in the court below did not allow opportunity to produce necessary proof, an application for further time would certainly have been granted by the court below. But it does not appear that any such application was made; on the contrary, it is apparent that the motion was submitted below upon the legal questions raised and in line with the arguments in this court.
2. We come, then, to the question whether the affidavits presented on the motion to strike out clearly show the citizenship of relator. The affidavits state that relator is the son of one Valentine Engelhard, who was by an order of the court of common pleas of Meigs county, Ohio, naturalized as a citizen of the United States on May 28, 1852, at which time relator was of the age of eleven years, by virtue of which relator claims that he then became and has since remained a citizen of the United States, entitled to all the rights, privileges, and immunities of such. In support of the affidavit that the relator's father thus became a citizen, a properly authenticated copy of the order admitting him was offered as a part of the moving papers. It is in the following language:
Court of Common Pleas, Meigs County, Ohio.
In the Matter of the Naturalization of Valentine Engelhard.
Pomeroy, Ohio, May Term, 1852.
Certified Copy of Journal Entry.
Valentine Engelhard, an alien and native of Germany, a free white person, this day came into court and proved to the satisfaction of the court that he made in this court two years ago the requisite declaration of his intention to become a citizen of the United States, and he has resided in the United States for five years last past, that he has resided one year last past in the State of Ohio, and that during all that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; and thereupon the said Valentine Engelhard in open court here made solemn oath that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty and particularly all allegiance and fidelity to Maximillian II, King of Germany, whose subject he was.
Whereupon it is ordered by the court that a certificate of naturalization be issued to him on payment of the costs of this application.
Several objections are made to the sufficiency of this record. The first, namely, that relator is not shown to be the son of the Valentine Engelhard who was admitted to citizenship by the Ohio court, is clearly not well taken. The affidavits on this subject are clear and unequivocal, and leave no room for controversy. They sufficiently show that the Valentine Engelhard admitted by the Ohio court was the father of relator. It is also contended that an alien can only be admitted to citizenship by a court of record exercising common-law jurisdiction, and by the formal entry of a judgment of admission; that it does not appear in the case at bar that the court of common pleas of Meigs county, Ohio, possessed the necessary power and authority; and that the certified copy of the record above quoted does not amount to a judgment conferring citizenship upon the applicant.
Section 2165, R. S. U. S. 1878 [U. S. Comp. St. 1901, 1329], provides the method and manner by which an alien may become a citizen of the United States. It requires the applicant to appear before a Circuit or District Court of the United States "or a court of record of any of the states having common-law jurisdiction," establish his residence and other facts entitling him to admission, and take the oath of allegiance. The act also provides that the proceedings upon such application shall be recorded...
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