State ex rel. Zink v. Hoggatt
| Decision Date | 24 October 1928 |
| Docket Number | 25,426 |
| Citation | 163 N.E. 258,200 Ind. 338 |
| Parties | State of Indiana, ex rel. Zink v. Hoggatt |
| Court | Indiana Supreme Court |
1. QUO WARRANTO---Information---When Proper Remedy.---An information in the nature of quo warranto is the appropriate remedy for obtaining the possession of an office to which a person has been legally elected and has become duly qualified to hold and for the removal of an incumbent of an office who has usurped and illegally continues to hold it (1208 Burns 1926) p. 341.
2. ELECTIONS---Contest---Causes.---One of the causes for the contest of an election is that the contestee is ineligible (7610 Burns 1926). p. 342.
3. QUO WARRANTO---For Possession of Office---Relator's Right to Recover.---In a quo warranto proceeding to oust the defendant from an office (1208 Burns 1926), the relator can recover only upon the strength of his own title to the office. p 342.
4. QUO WARRANTO---Possession of Office---Demand against Incumbent---When may be Refused.---As against a relator claiming to have been duly elected to an office, but who has not been declared elected by the proper officials or court the incumbent of the office is justified in refusing to deliver the office and all the papers, books, money, and other things belonging to and connected therewith to the relator, upon his demand. p. 342.
5. QUO WARRANTO---Information for Possession of Office---Insufficient on Demurrer.---An information in the nature of quo warranto alleging that, at the previous general election, the relator was a qualified voter and fully qualified in all respects to hold the office of township trustee of the township in which he lived, that the incumbent of the office was a candidate at said election for said office and received the highest number of votes of any candidate therefor, but that he was ineligible to hold said office because he had been declared insane and a proper person for treatment in a hospital for the insane, which facts were known to the voters of the township who voted for him, that the relator was a candidate for said office at said election and received the next highest vote for said office, and thereafter duly qualified for said office, was insufficient on demurrer, as it failed to show that a certificate of election had been issued to him showing his election or that a court had adjudged that he was entitled to the office. p. 343.
From Washington Circuit Court; James L. Tucker, Judge.
Proceeding in the nature of quo warranto on the relation of Ellis L. Zink against John K. Hoggatt. From a judgment for defendant on demurrer to the information, the relator appeals.
Affirmed.
Elliott & Houston, for appellant.
Emmett C. Mitchell and Wilbur W. Hottell, for appellee.
This is a proceeding in the nature of quo warranto, brought by the state on the relation of Ellis L. Zink against John K. Hoggatt, now appellee, in which the relator asks that he be adjudged the duly elected and qualified trustee of Howard Township, in Washington County, and that the defendant be required to turn over to him the said office, together with all papers, books, money and other things of every kind and character connected with and belonging to said office.
The circuit court sustained defendant's demurrer to the complaint and that ruling is assigned as error on appeal.
The material averments of the complaint are as follows: That the relator was a qualified voter of Howard Township, of Washington County, in the State of Indiana, and fully qualified in all legal respects to hold the office of trustee of Howard Township. On November 2, 1926, the relator was the duly and legally nominated candidate of the Democratic party for the office of trustee of said township and on said day, he received, at the general election held in said township, 156 votes for said office, which was the highest vote received by any eligible candidate, and which number of votes constituted a majority of the eligible votes cast by the voters of the township for any eligible candidate for said office. At said election, Bird Wilcoxson was the candidate of the Republican party for the office of trustee of Howard Township and he received 174 votes for said office. Said Bird Wilcoxson was wholly ineligible to hold the office or to receive any votes therefor, for the reason that he was, at said time, a person of unsound mind; and that a sanity inquest had been held as provided by law, and a judgment returned that he was insane and was a proper person for treatment in a hospital for the insane, which judgment was filed in the office of the clerk of the Washington Circuit Court on November 1, 1926, and on November 2, 1926, he was duly admitted to the South Eastern Hospital for the Insane and is still incarcerated there. Since before November 1, 1926, he has been wholly and totally ineligible to hold said office, which facts were known to the voters of Howard Township who voted for said Wilcoxson for said office, at the time they so voted for him, or should have been known by them on account of the public record so on...
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