| Utah | Jun 15, 1875
delivered the opinion of the Court:
The case was mandamus, and the writ was issued, and the hearing and proceedings were had before the Judge of the Third District Court in vacation, in pursuance of the 592nd Section of the Practice Act. It is assigned for error that there was no jurisdiction in the Judge at Chambers, for the reason that it was not competent for the Legislature to confer this jurisdiction upon the Judge in vacation, fend that the Section referred .to is in violation of Sec. 9 of the Organic Act. I do not think there is any plain incompatibility' between the two. A similar
It appears from the affidavit of the Belator Brown that he received at the general election of 1874 votes for the office of Probate Judge of Tooele County; that on a canvass of the election he was declared elected by a majority of the votes; that the County Clerk issued to him a certificate of election; that the Governor had issued and delivered to him a commission as Probate Judge, and that he had taken the oath of office; that he prepared and presented to the Defendant as County Treasurer an official bond with sufficient sureties, which the Defendant refused to approve and file. Upon this affidavit an alternative writ of mandamus was issued, and upon its return, a motion was made to quash the writ dpon grounds that were deemed untenable, and the motion was overruled. The Defendant then answered, denying that the Plaintiff was elected Probate Judge, alleging that one John Rowherry was in possession of the office of Probate Judge, and that the selectmen of the county at a time subsequent to the presentation of the bond by Plaintiff had increased thfe penalty of the bond, to be given by the Probate Judge. On the filing of the answer the Judge framed three issues, to be tried as material to the decision of the case, and the case proceeded to trial by the Court, neither party demanding a jury, nor has the trial without a jury been assigned as error. Upon the trial the averments of the complaint were sustained by the proofs, and from the facts elicited there is no doubt that the Plaintiff was entitled to have the bond approved and filed by the Defendant. The Plaintiff had the certificate of election, and the commission of the Governor, the fact that Rowberry had also been voted for, for Probate Judge, and that a contest was likely to arise between him and the Plaintiff as to whp was elected, was a question with which the Defendant
There was a claim in the complaint for damages for Counsel fees, traveling expenses and hotel bills claimed at $500, in and about the prosecution of the suit, and judgment was rendered for damages for $400. This was erroneous. The party had no claim for such expenditures as damages in a suit of this kind any more than in' an ordinary action. Practice Act, Sec. 472; Sedgwick on Damages, p. 97, and cases there cited. Other points of supposed error are urged, but I think they are immaterial.
As the Plaintiff is not entitled to a recovery in respect to the damages alleged, no re-trial of the case is necessary. An order may be entered modifying the judgment of the Court below, by setting aside so much of it as awards damages -in $400. And as to the judgment, in other respects, it will be affirmed and cause remanded.
It is said in the statement that the Judge refused to grant a stay of proceedings as to the issue of the peremptory writ, but this is not presented in a mode in which any effective order can be made. I see no reason, however, why a supersedeas should not have been granted.