People ex rel. Dickenson v. Banvard

Statement on Appeal prom a Judgment.—A party who appeals from a judgment or an order, with a statement annexed to the judgment roll, must specify particularly in his statement the grounds upon which he intends to rely on the appeal. Motion por Nonsuit.—A party moving for a nonsuit should state in his motion precisely the grounds upon which he relies, so that the attention of the Court and the opposite counsel may be particularly directed to the supposed defects in the plaintiff's case. Power op Legislature over Opfioes. — The incumbent of an administrative office, created by the Legislature, may be legislated out of office pending the term for which he was elected. Judgment in Quo Warranto.—In an action of quo warranto to determine the right to an office, where the relator claims the office as against the incumbent, the Court may not only determine the right of the defendant, but of the relator also; and if it determines in favor of the relator, may render judgment that the defendant forthwith deliver up to the relator the office. Appeal prom A Judgment.—On an appeal from a judgment, the appellate Court cannot consider the question whether the findings of fact are justified by the evidence.

Appeal from the District Court, Fourteenth Judicial District, Placer County. The defendant was elected Treasurer of the County of Placer, at the general election in 1862, and afterwards qualified and entered upon the discharge of its duties. By the law, as it then stood, his term commenced on the first Monday in December, 1862, and extended to the first Monday in March, 1865. By the Act of 1863, (see Laws of 1863, p. 387, Sec. 11,) it was provided that all county officers in every county of this State shall be elected at the general election in 1863, and of every second year thereafter, and shall hold their offices for the term of two years from and after the first Monday of March subsequent to their election. At the general election held in September, 1863, defendant and relator were candidates for the office of Treasurer of Placer County, and relator received a majority of the votes and the certificate of election. The defendant refused to surrender up the office on the first Monday in March, 1864, and this action was commenced to try the right to the office. The Court found the following facts : “At the general election in 1862, defendant was duly elected to the office of County Treasurer of said county for the ensuing term, which, as the law then stood, was for two years and three months from the first Monday in December, 1862. “ He duly qualified and entered upon the office at the commencement of the said term, and has held it ever since. “ The term under the law of 1862, if the same were now in force, would of course not expire until March, 1865.' “ In 1863, under the recent amendments of the State Constitution, the Legislature passed an Act providing that all county officers throughout the State, including Treasurer, should be elected at the general election in said year, (1863,) that their terms should commence on the first Monday in March, 1864, and continue for two years; and repealing all former statutes conflicting with said Act. , Under this latter Act, the relator, Dickenson, at the general election in 1863, was duly elected County Treasurer of said county. He received his certificate of election, took the oath, filed his official bond, and did all the acts necessary and required by law, in order to entitle him to enter upon the office. At the commencement of his term, on the first Monday of March, 1864, he demanded the office of the defendant, who refused to deliver it to him, but continues to hold it himself.” Upon these facts the Court rendered the following judgment: “ Wherefore, it is considered and adjudged that the said relator, J. W. Dickenson, is the lawfully elected and duly qualified Treasurer of said Placer County, and is entitled to use, hold, and exercise the said office, and perform the duties thereof, and to receive the emoluments thereof for two years, commencing with the 1st day of March, A. D. 1864, and that the defendant, E. M. Banvard, is guilty of usurping, holding, using, and executing the same, performing the duties and receiving the emoluments thereof unlawfully. “And it is ordered, adjudged, and decreed, that the said defendant, E. M. Banvard, be and he is hereby excluded from the said office of Treasurer of said Placer County, and from exercising any of the duties pertaining thereto; and that he, the said defendant, do forthwith yield and deliver up to the said relator, J. W. Dickenson, the said office of Treasurer of said Placer County, and all of the books, papers, keys, furniture, property, rooms, documents, moneys, records, belonging or pertaining to the said office or the business thereof, and all and everything or things of whatsoever name or nature which may belong to the said office or the business thereof; and that the said relator have and recover of the said defendant, E. M. Banvard, his costs and expenses herein, taxed at twenty-seven dollars and sixty cents, and that execution issue therefor.” The defendant appealed from the judgment, and annexed a statement of the evidence, exceptions, etc., to the judgment roll. After the relator had closed his evidence and rested, defendant moved the Court for a nonsuit, without assigning in his motion the grounds on which he claimed it. Defendant claimed as one reason for holding over, that relator’s bond was insufficient, and on the defense offered two witnesses to prove that before relator filed his bond they told him it was insufficient, and did not comply with the statute.