State ex rel. McKee v. Porter

Root, J. This is a proceeding in mandamus, instituted in the district court, to compel the respondent to deliver to the relator the boohs, money, stationery, receipts, furniture and other articles belonging to the office of city treasurer of the city of Alma. The relator prevailed, and the respondent appeals. The record does not disclose whether the judgment lias been executed', but since the district court refused to grant a supersedeas, and we have not been requested to supersede the judgment, it is reasonable to presume that the relator has possession of the money, records and all other indicia of the office referred to in the writ. The respondent pleaded in his return that the relator is a woman, and therefore ineligible to hold the office. The affidavit for the writ does not disclose the relator’s sex, unless the fact is established by the form of the relator’s first name. The word is the French form of John. Webster’s New International Dictionary, p. 2517. It is, however, used as an abbreviation of the word Jennie. Testimony was received, over the relator’s objection, on this point. We find no motion for a new trial in the transcript,, hence we are not required to examine the sufficiency of the evidence to sustain the findings. Such a question must have been raised by the filing bf a .motion for a" new trial *in the district court in order to entitle [235] the respondent to be heard here. State v. Farrington, 86 Neb. 653. We are induced to hold the respondent to a strict compliance with the rules of practice, because he has attempted to hold an office beyond the term to which he Avas elected, and in opposition to the relator Avho holds a certificate of election therefor, and in this ■ we are convinced he is in no manner attempting to vindicate the public right. If he is serious in his contention that the public welfare, rather than his private interests, impels him to litigate the relator’s right to the office, he may accomplish his purpose by prosecuting the quo warranto action which he has instituted against the relator. We do not find it necessary to pass upon the relator’s eligibility to hold the office of city treasurer. The judgment of the district court is Affirmed.