State v. McQuade

• Decision Date: 12 September 1895
• Citation: 12 Wash. 554,41 P. 897
• Parties: STATE EX REL. TREMBLAY v. MCQUADE.
• Court: Washington Supreme Court

41 P. 897

12 Wash. 554

STATE EX REL. TREMBLAY v. MCQUADE.

Supreme Court of Washington

September 12, 1895

Appeal from superior court, King county; J. W. Langley, Judge.

Proceeding by Ed. Tremblay against John McQuade. A demurrer was sustained to the complaint, and relator appeals. Motion to dismiss appeal denied, and judgment reversed.

P. V Davis and Fred H. Peterson, for appellant.

P. P Carroll, for respondent.

ANDERS J.

This is a proceeding in the nature of a quo warranto, instituted by the relator for the purpose of obtaining possession of the office of marshal of the town of Gilman, and of ousting the respondent therefrom. The respondent moves the court to dismiss the appeal, on the alleged grounds (1) that at the time of serving the notice of appeal in this cause there was no judgment of record to appeal from; (2) that no statement of facts or bill of exceptions has been filed served, and certified as required by law; and (3) that said relator is not an officer, as alleged in his information, and is no longer entitled to prosecute this action as said town marshal.

The statute relating to appeals to the supreme court (Laws 1893 p. 120, § 4) provides, among other things, that "if the appeal be not taken at the time when the judgment or order appealed from is rendered or made, then the party desiring to appeal may, by himself or his attorney, within the time prescribed in section three of this act, serve written notice on the prevailing party or his attorney that he appeals from such judgment or order to the supreme court." The appeal in this case was not taken at the time when the judgment appealed from was rendered, and it was therefore necessary to serve a notice in writing upon the adverse party within the time prescribed by the statute, which was done by the appellant. The judgment appealed from, as shown by the record, was rendered on November 20, 1894, and the notice of appeal was duly served on the respondent on the 20th day of December following. Under the statute, the notice was certainly served within the time limited by section 3 of the act, and there is no objection to its form or substance. The appeal was therefore properly taken. The cause was tried upon the complaint and the demurrer of the respondent, and, as the complaint and demurrer constituted portions of the record in the cause, no bill of exceptions or statement of facts was necessary or proper.

In support of the proposition that the relator is not an officer, as alleged in his information, and is no longer entitled to prosecute this action as marshal of said town, the respondent has inserted in his brief certain proceedings of the town council which are not of record in the cause, and therefore cannot be here considered. The motion to dismiss is denied.

The complaint or information alleges that "the town of Gilman, during all of the time and times herein, was and is a municipal corporation of the fourth class, organized and existing under the laws of the state of Washington; that on the 9th day of January, 1894, one John McQuade was appointed marshal of said town of Gilman, by the common council of said town, to hold said office at the pleasure of said council, and said McQuade immediately thereafter entered upon the duties of said office, and continued therein until his removal as herein alleged; that on the 6th day of July, 1894, said respondent, McQuade, was duly removed from said office by said council for cause deemed sufficient, by resolution entered upon the records of said council; that, immediately after the removal of the respondent as aforesaid, said Tremblay was duly appointed town marshal by the council of said town to fill the vacancy caused by the removal of said respondent as aforesaid; that said Tremblay accepted the said office, and, in the form and within the time required by law and the ordinances of said town, took and subscribed the constitutional oath of office, and filed the same with the clerk of said town, and executed the official bond required...