Terr. of Dakota ex rel. Peterson v. Hauxhurst

• Decision Date: 13 November 1882
• Citation: 3 Dak. 205,14 N.W. 432
• Parties: Territory of Dakota ex rel. Peterson v. Hauxhurst.
• Court: South Dakota Supreme Court

14 N.W. 432

3 Dak. 205

Territory of Dakota ex rel. Peterson

v.Hauxhurst.

Supreme Court of the Territory of Dakota.

Filed November 13, 1882.

Appeal from the district court of Brookings county.J. W. Carter, Dist. Atty., and R. A. Murray, for respondent. Winsor & Severey, for appellant.

KIDDER, J.

This action was predicated upon chapter 26 of the Code of Civil Proc. § 535, to determine the title to the office of register of deeds of the county of Brookings, which is as follows: “When an action shall be brought by the district attorney by virtue of this chapter, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the territory as plaintiff.” The ancient writ of quo warranto was a writ of right for the king, against one who usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right. 3 Bl. 262. The remedies formerly attainable by writ of quo warranto, and proceedings by information in the nature of quo warranto, may be obtained by civil action under the provision of this chapter. Section 531. It is only the form of the proceeding that is abolished. The jurisdiction and power of the courts are not touched by that section, even if they could be by legislation; nor the right to seek and reach through them all the remedy which that writ or information once afforded. The position of the defendant, the rules of evidence, and the presumptions of law and fact, are the same as in the proceeding by writ or information, for which the remedy by action was substituted.

This action was brought by the district attorney of the fourth judicial district, by leave of court, to oust James Hauxhurst, the defendant and appellant, from said office on the petition of Peter O. Peterson, one of the plaintiffs and appellants, and to put said Peterson in possession of the same. The defendant demurred to the complaint upon two grounds, viz.: First, a defect of parties plaintiff; second, no cause of action is stated in the complaint. The demurrer was overruled, and, the defendant electing to stand by the demurrer, judgment was entered against him, from which this appeal was taken.

1. It was conceded on the part of the defendant, upon the argument, that he did not demur “to the title of the cause, but to the complaint itself and the allegations thereof. To ascertain whether the name of the plaintiff Peterson was joined with the territory as a party, in compliance with the statute, we must have recourse to the record. The title to the complaint is in these words: “The Territory of Dakota ex rel. Peter O. Peterson, plaintiffs, v. James Hauxhurst, defendant.” The italicism is mine. The first sentence of the complaint avers that “Peter O. Peterson, one of the above-named plaintiffs, respectfully alleges and petitions *** (1) that on the second day of November *** (2) that on said second day *** (3) that prior to *** (4) that at the election *** (5) that at the election so called *** (6) that all the said judges *** (7) that on the seventeenth day of November *** (8) that heretofore, to-wit, on the first Monday of *** (9) wherefore plaintiffs allege that plaintiff Peter O. Peterson is rightfully entitled to said office *** (10) wherefore plaintiffs demand judgment, *** and that the defendant be required to surrender the office in controversy” to the plaintiff Peterson, etc. The foregoing allegations of the plaintiffs were made through one of them; through him who had “an interest in the question,” and knew the facts that he desired to set out. From which does it appear that the relator is made a party plaintiff?

In the case The People ex rel. Crane and said Crane v. Ryder, 12 N. Y. 433, cited by the learned counsel of the defendant, the same points were made on demurrer to the complaint that are raised here, and on the first point, that there was a defect of parties plaintiff, the court say: “It is not material in this case to inquire whether a defendent may demur for a misjoinder of plaintiffs if the complaint states facts showing that Crane is entitled to the office, for the Code requires that when an action of this kind is brought by the attorney general on the relation or information of a person having ‘an interest in the question,’ that the name of such person shall be joined with the people as plaintiff. If, therefore, the complaint does show that Crane had ‘an interest in the question,’ he, being the relator, was properly and necessarily made a party plaintiff, and the inquiry whether a demurrer will lie for a misjoinder of plaintiffs does not arise.”

This case is not analogous to the one at bar. It decides that Crane, the relator, having an interest in the question, was properly made a party, and the question whether a demurrer will lie for a misjoinder of plaintiffs did not arise.

I have examined the cases in 28 Wis. 541 and 24 Wis. 63, and other cases cited by defendant's counsel, which are authorities in point only so far as the title is concerned, i. e., The Territory of Dakota ex rel. John Doe; and John Doe v. Richard Roe is frequently employed without objection, and no doubt for the same reason stated in 12 N. Y. supra; and, on a further examination of cases not cited in the argument, I find very many entitled the same as the one at bar, no exceptions appearing to have been taken thereto; so I have no hesitancy in declaring that the latter mode is the rule for entitling such cases and the former the exception. But as the counsel for defendant makes no point as to the title, I will introduce People v. Fairchild, 67 N. Y. 334, cited in the brief, which is not only a parallel case as to the title, but as to the allegations in the complaint stated as follows: “The relators allege that they were duly elected alderman aud assistant alderman of the city of New York,” etc. The allegations in the complaint we are now considering are thus: “ Peter O. Peterson, one of the above-named plaintiffs, respectfully alleges,” etc. Although there does not appear to have been a demurrer interposed in the case of People v. Demarest for want of parties plaintiff,-for which omission I make no attempt to criticise the distinguished counsel for the appellant in that case,-yet we can perceive that the defect is more bold in that case, for the pleader does not state that the relators are “ three of the plaintiffs,” nor does it set up the “people” as plaintiffs. The Code, p. 529, § 111, reads: “The complaint shall contain (1) the title of the cause, *** and the names of the parties to the action.” Vide, also, Bliss, Pl. § 145; Holton v. Parker, 13 Minn. 383. We are of opinion that the statute has been complied with in stating the title to this action, and also that the relator, Peterson, was made a party plaintiff by the allegations in the body of the complaint.

2. Does the complaint state facts sufficient to constitute a cause of action? The Code requires that the complaint contain “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.” Section 111, subd. 2. This rule is substantially as it existed prior to its enactment in actions at law. Whatever circumstances are necessary to constitute the cause of complaint or the ground of defense, must be stated in the pleadings, and all beyond is surplusage; facts only are to be stated, and not arguments or inferences or matters of law, in which respect the pleadings at law appear to differ materially from those in equity. 1 Ch. Pl. 245. He says, on page 266, it is a most important principle of the law of pleading that in alleging the fact it is unnecessary to state such circumstances as merely tend to prove the truth of it. The dry allegation of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice. The object of the pleadings is to arrive at a specific issue upon a given and material fact; and this is attained, although the evidence of such fact to be laid before the jury be not specifically developed in the pleadings. It is a compliance with the Code and safe to state the facts constituting the cause of action substantially in the same manner as they were stated in the old system in a special count. By that statement the legal issuable facts were to be stated, and the evidence by which those facts were to be established was to be brought forward on the trial. This position will not embrace what were known as the common counts.

It has been supposed that a wider latitude should be allowed in equity pleading, and that evidence may, to some extent, be incorporated in the statement. The rule of the Code is broad enough for all cases, and permits a statement of facts only as contradistinguished from the evidence which is to establish those facts. But in an equity case the facts may be more numerous, more complicated, more involved, and the pleader may state...