State v. Brown

• Decision Date: 09 April 1886
• Parties: THE STATE OF KANSAS, ex rel. A. W. Edgerly, County Attorney, v. C. O. BROWN, as Probate Judge of Coffey County
• Court: Kansas Supreme Court

10 P. 594

35 Kan. 167

THE STATE OF KANSAS, ex rel. A. W. Edgerly, County Attorney, v. C. O. BROWN, as Probate Judge of Coffey County

Supreme Court of Kansas

April 9, 1886

Decided January, 1886

Original Proceedings in Quo Warranto.

Or November 11, 1885, The State of Kansas, ex rel. A. W Edgerly, county attorney of Coffey county, filed the following petition against C. O. Brown, probate judge of said county:

"The State of Kansas, on the relation of A. W. Edgerly, county attorney of Coffey county, Kansas, and by virtue of the authority vested in him by law, gives the court here to understand and be informed, that at the general election of the year 1884, and on the 4th day of November, 1884, said defendant, C. O. Brown, was duly elected to the office of probate judge of county, Kansas, for the term of two years to commence on the second Monday of January, 1885; that subsequently the said defendant duly qualified for said office, and on the second Monday of January, 1885, duly entered upon the discharge of the duties of his said office of probate judge of said county, and that ever since said second Monday of January, 1885, said C. O. Brown has been acting as probate judge of said county; that on and prior to the 1st day of January, 1885, and continuously since the 1st day of January, 1885, till after the 25th day of July, 1885 one D. V. Mott was the duly elected, qualified, and acting county treasurer of Coffey county, Kansas; that the said C. O. Brown, as judge of the said probate court, has, during his said term of office, neglected and refused to perform certain acts hereinafter particularly set forth and stated, which it was his duty as judge of the said probate court to perform, which neglect and refusal to do said acts cause and work a forfeiture of his said office of probate judge of said Coffey county, Kansas.

"1. He, the said C. O. Brown, as judge of the said probate court, neglected and refused, during the first quarter of this, the year 1885, to examine and count the funds in the hands of said D. V. Mott, the county treasurer as aforesaid of said Coffey county.

"2 He, the said C. O. Brown, as judge of the said probate court, neglected and refused, during the second quarter of this, the year 1885, to examine and count the funds in the hands of the said D. V. Mott, the county treasurer as aforesaid of said Coffey county.

"3. He, the said C. O. Brown, as judge of the said probate court, has during all the months of January, February, March, April, May, June, and July, in this, the year 1885, neglected and refused, and he has not at any time in any of the said months made any attempt to examine and count the funds in the hands of the said D. V. Mott, the county treasurer as aforesaid of said Coffey county and by reason of his said failure as aforesaid to examine and count the funds in the hands of the county treasurer aforesaid, as is required by law, the said D. V. Mott, county treasurer of said Coffey county, made default in a large sum, to wit, in the sum of forty-five thousand dollars.

"Therefore said county attorney, on behalf of and in the name of the state of Kansas, prays judgment that the said C. O. Brown, by reason of his aforesaid acts, refusal to act, and misconduct, may be adjudged and declared to have forfeited his said office of probate judge of Coffey county, Kansas, and that he be ousted and removed therefrom."

The defendant filed the following demurrer, (omitting court and title:)

"Comes now said defendant, C. O. Brown, probate judge of Coffey county, Kansas, and demurs to the petition of the plaintiff filed herein, for the following reasons, to wit:

"1. This court has no jurisdiction of the subject of the action attempted to be stated in the said petition.

"2. Said petition does not state facts sufficient to constitute a cause of action in favor of said plaintiff and against this defendant."

The opinion herein was filed at the April, 1886, session of the court.

A. W. Edgerly, county attorney, for The State; S. B. Bradford, attorney general, and E. A. Austin, of counsel; Hazen & Isenhart, special counsel.

G. E. Manchester, for defendant; G. N. McConnell, and John M. Rankin, of counsel.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is an action in the nature of quo warranto, brought by the plaintiff to remove the defendant from the office of probate judge of Coffey county, in this state, because of an...