Steck v. Mahar

McClure, C. J. This action appears to have been commenced under section 525, of the Civil Code, which provides that a proceeding at law may be instituted against a party who usurps an office, by the party entitled thereto. The appellee, who was the plaintiff in the court below, alleges, in his complaint, that he was legally appointed and commissioned as constable of Vaugine township, Jefferson county, by the Governor of the State, and that ho has given bond and qualified as such, and is entitled to said office of constable, and the fees thereof. That one Jacob S. Steck has usurped said office,' and is exercising the duties thereof without authority of law, and has received fees pertaining to said office, amounting to $1,000, and concludes by asking that said Steck be removed from said office, and that he, the plaintiff’,, have judgment for the fees received by said Steck, as constable. Steck, as a response and exhibit, as appears from the record, simply filed his commission as constable. The cause was submitted to the court, sitting as a jury, and the court found for the appellee, and that Steck was an usurper, and rendered a judgment against him for $100 00, as-•damages.'' ff’íT'wSrctí. ruling and finding of the court Stock excepted, and .asked time to prepare his bill of exceptions. The bill of exceptions recites that the only evidence offered by the appellee was his- commission, and that the only evidence offered by the appellant, was his commission. No declarations of law seem to have been asked by either party; nor does it appear that the court made any declaration of law; nor was there a motion for a new trial. Under this state of facts, the defendant, in the court below appealed, on an issue and trial of fact, by a jury, or the court. A motion for a new trial is essential to correct the errors growing out of the evidence o.r instructions, before an appeal can be entertained by this court. Where the error complained of does not relate to errors growing out of the evidence or instructions, hut are apparent from the record, without the intervention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause, in such a case, can be brought to this court without making the motion; but in cases where the error complained ■of does not appear of record, save by the intervention of a bill of exceptions, a motion for a new trial must be made before .appeal will lie to this court; and the appeal will not lie in the case last supposed, if the error complained of can be corrected in the manner provided in section 571, of the Civil Code, until the motion has been made in the circuit court, and there overruled, (Sec. 886.) In the ease at bar, it appears there was an issue and trial of fact by the court below; not only an issue and trial, but a finding that Mahar was, and is the legal constable of Vaugiue township, and that Stock is an usurper of said office, and not entitled to discharge the duties thereof, and of right, has no .claim thereto. A judgment of ouster followed this finding. There is no error in the judgment, if the finding of the court, sitting as a jury, is correct. Whether the court erred as to the finding of facts, we have no means of ascertaining, nor would it be proper for us to take the matter under consideration, in the present attitude of the case. Counsel for the appellant urge that the bill of exceptions is defective in not showing the evidence, or in any manner identifying it. It is unnecessary to say any thing about.the exceptions, as the record itself cannot be considered by the court. The appeal is dismissed.