The People v. Green

• Decision Date: 01 January 1869
• Citation: 1 Idaho 235
• Parties: The People ex rel. W. W. Glidden, Plaintiff In Error, v. J. H. T. Green Et Al., Defendants In Error.
• Court: Idaho Supreme Court

1 Idaho 235

The People ex rel. W. W. Glidden, Plaintiff In Error, v. J. H. T. Green Et Al., Defendants In Error.

Supreme Court of Idaho

January 1, 1869

INTERVENTION-QUO WARRANTO.-The right of intervention given by statute exists only in actions which are purely civil in their character. The statutory proceeding in the nature of a quo warranto is quasi criminal in character, and in such action the right to intervene does not exist.

OFFICER-TERM OF OFFICE.-The right of an officer to hold office until his successor is elected and qualified is as much a part of his estate in the office as the original term for which he was elected.

ERROR to the District Court of the Second Judicial District, Ada County.

McBride & Henley, for the Plaintiffs in Error. Scaniker & Burmester H. E. Prickett and E. J. Curtis, for the Defendants in Error.

MILLER J.,

delivered the opinion of the court,

BOWERS C. J., and KELLY, J., concurring.

On the fourteenth day of January, 1868, the people, upon the relation of W. W. Glidden, by the district attorney (under section 272 of the Civil Practice Act (Laws of Idaho, first session, p. 138), filed the complaint herein, in the court below-third judicial district, in and for the county of Ada charging that defendant Green, "without any legal right, warrant or authority whatever," had since the sixth day of January, 1868, "held, used, and exercised" the office of county treasurer of Ada county; that Green had been elected to said office at the general election held in August, 1865, and entered upon the exercise thereof in January, 1866; that the relator was elected to said office at the election held in August, 1867, for two years, commencing January, 1868, and had duly qualified,

and concludes by asking judgment of ouster from said office of defendant Green, and "further judgment that the said W. W. Glidden be entitled to the said office." To this complaint the defendant Green, on the twenty-fifth day of January, 1868, filed his demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and upon the further ground of the nonjoinder of parties plaintiff. Upon the complaint and demurrer issue was joined and the case submitted, and after argument on the 27th of April, 1868, judgment was rendered sustaining the demurrer, with leave to the plaintiff to amend.

Afterward on the fourth day of May, 1868, the people ex rel. Glidden, by the district attorney, filed their amended and supplemental complaint, pleading matters occurring after the filing of the original complaint, to wit, the removal of Green on the 18th of April, 1868, by action of the board of county commissioners for Ada county, and the appointment of Glidden to the office on the same day by said board, and his subsequent qualification under said appointment on the twenty-third day of April, 1868. After the joinder of issue on the demurrer to the original complaint and the submission of the demurrer upon argument to the judgment of the court, but before the rendition of the judgment thereon, to wit, on the twenty-fifth day of April, 1868, Thomas E. Logan filed his bill of intervention claiming that he was elected to the office of county treasurer of Ada county in August, 1866; that he had never received his certificate of election, that he had not taken the oath of office or filed the necessary bond required by law, but avers his readiness to do so, and that he was elected to hold the office for two years from January, 1867, and that Glidden claims to hold by an election held in August, 1867, for two years from January, 1868, and that no vacancy existed in said office at the time of Glidden's election which could be legally filled by election.

To the filing of this intervention, defendant Green objected, and also demurred to the same on the fifth day of May, 1868. The court below heard the objections to the filing of the intervention and the demurrer thereto at the same time, and gave

judgment on the demurrer, and dismissed the intervention on the 7th of May, 1868. Afterward, on the fourteenth day of May, the plaintiff did through the district attorney, in "open court," withdraw his amended complaint and abandon the further prosecution of said proceeding, and thereupon judgment was entered for the defendant Green for his costs and the complaint dismissed.

The intervener, Thomas E. Logan, now sues out a writ of error to this court for the reversal of the judgment of the court below on the demurrer of defendant to his petition of intervention. The respondent in error, Green, moves this court to quash the writ upon the grounds that the same was improperly issued, in this, that there is no writ of error allowed under the statute, that title 10 of the Civil Practice Act is in direct conflict with title 9, Laws of Idaho, first session, pp. 140, 147, secs. 281, 312, and that the appeal is the only proper remedy. We are not prepared at present to pass upon this motion, neither is it necessary in order to fully and fairly decide the case upon its merits. There are other points upon which it must turn, no matter what view we might take of the motion to quash the writ. The points presented for our decision are:

1. Did the intervener, Logan, have the right to intervene in the original action of People ex rel. Glidden v. Green?

2. If Logan did have the right to intervene, does his petition of intervention show a cause of action?

Section 601, page 204, Laws of Idaho, first session, says: "Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, or in the success of either of the parties to the action, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both plaintiff and defendant."

Section 602 says: "Any third person may intervene either

before or after issue has been joined." Under section 602 admitting both his right to intervene and the sufficiency of his complaint in intervention, Logan was not in time in filing his petition according to the rule laid down in Hocker v. Kelley, 14 Cal. 164. There the petitioner filed his bill after issue joined, and as the case was in the act of trial, and the court held he was too late. Here Logan files his petition after the joinder of issue on the demurrer, and the submission of the case thereon; and the court below, under the rule laid down in Hocker v. Kelley, above cited, should not have allowed him to file his petition, but should have sustained defendant Green's objections to its being...