Hawke v. McAllister

ROUSE, J. This case was tried and judgment rendered May 29, 1893. Motion for new trial was made and overruled on date of the judgment; a notice of appeal given, and bond on appeal executed, on same date of the judgment. The court adjourned the term on September 9, 1893, and on September 18, 1893, a bill of exceptions was delivered to the clerk by counsel for appellant; and two days thereafter the judge signed and settled said bill, against the objections of counsel for appellee. The case having been tried more than ten days before the end of the term, and the bill of exceptions not having been filed before the end of the term, it cannot be considered as a part of the record. Laws 1893, act 9; Hand v. Ruff, 3 Ariz. 175, 24 Pac. 257; Gila R. I. Co. v. Wolfley, 3 Ariz. 176, 24 Pac. 257; Sweet v. Perkins, 24 Fed. 777; Salt River Canal Co. v. Hickey, post, p. 240, 36 Pac. 171. A notice of appeal having been given, and an appeal-bond having been executed, the appeal cannot be dismissed; but we are compelled to examine the record, and consider the errors, if any,-that go to the foundation of the action. Rev. Stats., pars. 937, 945; Rankert v. Clow, 16 Tex. 9; Hollingsworth v. Holshousen, 17 Tex. 47; Salt River Canal Co. v. Hickey, supra. The only question thus presented is the decision of the court overruling the motion to dismiss the proceedings, which, in effect, was a demurer to the complaint on the grounds that it did not contain facts sufficient to constitute a cause of action. On April 19, 1893, appellee, plaintiff below, presented his complaint in the form of an affidavit for a mandamus against appellants, defendants below, Nat Hawke, W. K. Perkins, E. A. Nichols, and Frank Hare, to compel them to do certain things enumerated. The facts set forth in said affidavit are [152] to the effect that, at the general election in 1890, Scott White was elected a supervisor of Cochise County for a term of four years, beginning January 1, 1891, and that he duly qualified, and entered upon the discharge of the duties of said office, and continued to discharge the duties of said office until about January 15, 1893; that at the general election in 1892 plaintiff and defendant Perkins were duly elected supervisors of said county for the term of two years, beginning January 1, 1893, and that they duly qualified, and entered upon the discharge of the duties thereof; that on the third day of January, 1893, said board of supervisors organized with White as chairman, and plaintiff and Perkins as members, and duly elected defendant Hawke clerk of said board; that plaintiff continued in the discharge of the duties of his said office until the ninth day of January, 1893; that about the date last mentioned, while plaintiff was in the discharge of the duties of said office, and anxious and willing- to continue to do so, White and Perkins, without plaintiff’s consent, passed a resolution declaring plaintiff not a member of said board, and proceeded to pass a resolution electing defendant E. A. Nichols a member of said board in place of plaintiff, and' said Nichols from that time has been acting and attempting to act as a member of said board; that from the date last mentioned said White and Perkins, as members of said board, and said Hawke, as clerk of said board, refused to recognize plaintiff as a member of said board, but did recognize said Nichols as a member thereof instead and in the place of plaintiff; that thereafter, about the-day of January, 1893, White resigned as a member of said board, and qualified as sheriff of said county, to which office he had been elected at the general election in 1892; that on the twelfth day of January, 1893, said Perkins and Nichols attempted to' appoint and elect Prank Hare as a member of said board of supervisors in the place of White, who had resigned; that said Hawke, from and after the date of his election as clerk of said board, and at this date, is the custodian of the records and books of the said board, and qualified to enter therein the proceedings of said board; that from and after the appointment of said Nichols' the said White and Perkins and the said Hawke refused to recognise plaintiff as a member of said board, and refused to record his acts as a member thereof; [153] that after the resignation of said White, and the appointment of said Hare, the said parties refused to recognize plaintiff as a member of said board, and refused to record his acts as a member thereof, and still refuse to recognize him as a member and to record his acts as such. The affidavit further averred that said board of supervisors would meet at an early date thereafter, and that said parties would continue to refuse to allow plaintiff to act as a member of said board, and to record his acts as such. The allegations contained in the said affidavit constituted a cause of action. Eev. Stats., pars. 2335, 2336. Indeed, it would be difficult to create a state of facts, if one should be permitted to choose his own materials for that purpose, to make a stronger case. An examination of the answer discloses the reasons for the actions of the defendants, which would otherwise be reprehensible. The judgment should be affirmed, and it is so ordered. Hawkins, J., concurs. Baker, C. J., did not take part in this case.