Ellis v. Reddin

The opinion of the court was delivered by Valentine, J.:

This was an action in the nature of quo warramto. The defendant made a motion in the court below to require the plaintiff to make his petition more definite and certain in certain particulars. The court overruled the motion as a motion, and then treated it as a demurrer, and sustained it as a demurrer, to which ruling the plaintiff excepted. The ruling was evidently erroneous,' and the error was material. There is a vast difference between a motion to make more definite and certain, and a demurrer. And even if the petition would have been held. insufficient on demurrer, if a demurrer had been interposed, still, as the defendant did not choose to interpose a demurrer the court should not have done so for him. The petition, it is true, was defective; but Avhether it should have been held insufficient if a demurrer had been interposed, it is not now necessary to determine. It Avas such that if the parties had gone to trial upon it, Avithout objection, and a judgment had been rendered thereon in favor of the plaintiff, the judgment Avould have been valid, and Avould not have been disturbed on petition in error. “ Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the pleading.” (Code, § 130.) Courts must judicially take notice, Avithout allegations and without proof, that the 5th day of November 1872 was the day on *308 which the general election for that year was held; that it was a day at which vacancies in the office of clerk of the district court could have been filled; and courts must judicially know that an officer elected to fill a vacancy may take his office as soon as he is elected and qualified; and none of these things need be pleaded or proved. Now the plaintiff alleges with sufficient particúlarity his election to said office on said day, his receiving his certificate of election, his filing his official bond, its approval, etc., his taking the oath of office, his demand for the office and the property thereof, the defendant's refusal, and that since that time the defendant has been unlawfully exercising the duties of said office; and although the plaintiff does not in terms allege that he was elected to fill a vacancy merely, yet he evidently was from the allegations of his petition, and the law; and after a judgment upon a fair trial such a petition would be held sufficient.

The order of the court below sustaining said motion as a demurrer is reversed, and cause remanded for further proceedings.

All the Justices concurring.