The People v. Hunt
Citation | 1 Idaho 433 |
Parties | The People ex rel. J, W. Houston, Respondents, v. G. W. Hunt, Appellant. |
Decision Date | 01 January 1872 |
Court | United States State Supreme Court of Idaho |
APPELLATE COURT-RECORD-STATEMENT-BILL OF EXCEPTIONS.-This court cannot consider alleged errors not apparent in the record, nor brought into it by a statement or bill of exceptions properly settled and signed by the judge of the district court, or agreed to by the parties.
AMENDED PLEADINGS.-When an amended complaint is filed, it takes the place of the original, and all subsequent proceedings in the case are based upon the amended pleading.
VERIFICATION.-When the complaint is not verified, the answer need not be verified.
EXCEPTION.-If a party desires to have a decision of the district court reviewed by this court, he must except thereto when the ruling or decision is made; and he must also preserve and bring up such exceptions by bill of exceptions or statement.
STATUTORY CONSTRUCTION.-Statutes should be so construed as to give force and effect to each and every part thereof, if it is possible to do so.
APPEAL from the Second Judicial District, Ada County.
A. Heed, for the Appellant. J. Brumback, for the Respondents.
delivered the opinion,
This is an action prosecuted in behalf of J. H. McCarty, under chapter 4 of the Civil Practice Act, to recover the possession of the office of county commissioner, which is claimed to have been, before that time, illegally usurped and taken possession of by the defendant, appellant. Judgment was rendered by the district court against the defendant appellant, and the case is now brought to this court on appeal, to reverse that judgment.
On the part of J. H. McCarty, it is claimed that on the second Monday of August, 1868, pursuant to the statute in such cases made and provided, he, the said J. H. McCarty, was duly elected a county commissioner for the term of three years commencing on the first Monday of January, 1869; that after he was so elected, and before the said first Monday in January, he duly qualified as such commissioner; that on the said first Monday in January, 1869, the said J. H. McCarty entered into the full and complete discharge of the duties of said office, and that he so continued in office as county commissioner for Ada county, and that he continued to enjoy the same and all the rights and emoluments thereof, until the eleventh day of July, 1870; that upon that day, G. W. Hunt, the said defendant, appellant, usurped and unlawfully intruded himself into the said office of county commissioner of Ada county, and took possession of said office and the books and papers belonging thereto; that he continues unlawfully to hold and exercise the said office of county commissioner of Ada county, and that he withholds the same from the said J. H. McCarty.
The said G. W. Hunt, defendant below (appellant), answering the complaint, alleges that he is rightfully entitled to said office of county commissioner of said Ada county, and
to all the rights, franchises, and emoluments thereof, and has been so entitled from and since the first Monday in July, 1870. The said Hunt, further, in and by his said answer, alleges, that on the first Monday, that being the sixth day of June, 1870, a general election was held in said county of Ada, for the election, among other officers, of three county commissioners for said county, for the term of two years, from and after the first Monday in July, 1870.
That at such election, duly held as aforesaid, the defendant Hunt (appellant) was one of three persons receiving the highest number of votes given at said election in said county for said office, and that he duly qualified as such officer, and he submits that on the first Monday in July, 1870, he became, and continually has been, and still is, a commissioner of said county, entitled to hold, use, and exercise said office by virtue of said election. On the part of said defendant Hunt, it is also alleged that the court below, in permitting the amended complaint to be filed, allowed a new and different action to be commenced, claiming that "the title to a cause shall not be changed in any of its stages," referring to Nash's Pleading and Practice, pages 112 and 113.
What may have been done in the court below, we cannot know; we have no information from the record before us, that any objection was made thereto. Suppose the court below did all that is claimed, in the absence of an objection or an exception, must not this court conclude that the defendant so far consented, as to have waived his right now to object thereto? We think such a conclusion just in connection with the power of the district court conferred by sections 40, 45, and 486 of the Civil Practice Act, and under section 68 of the amendment to that law, as found on page 74 of the laws of the fifth session, which authorizes the district court to amend the pleading or proceeding by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect.
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...inadvertently or mistakenly used, or omitted, the court may and will determine the true and proper meaning of the legislative act (People v. Hunt, 1 Idaho 433; Ingard v. Barker, 27 Idaho 124, 147 P. State v. Jones, 34 Idaho 83, 199 P. 645; In re Segregation of School Dist. No. 58, 34 Idaho ......
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