City of Keokuk v. Merriam

| Iowa | Oct 20, 1876

Adams, J.

I. The appellant assigns, as the first error, the overruling of his motion to strike the demurrer from the files. But as the record show's no ruling upon the motion, we must presume it was waived.

II. It is claimed that the court erred in sustaining the demurrer. The part of the answer demurred to showed defendant’s resignation, and the election and qualification of his successor. Such facts alone would not constitute a defense. If the defendant still withheld the books of the city, he was omitting to perform a duty which the law imposed upon him.

■ In one view, the averments as to his resignation and the election and qualification of his successor were proper. They wez’e followed by an averment that he had turned the books of his office over to his successor. If the averments as to his resignation and the election and qualification of his successor were to be taken simply as showing that he had a successor, and as introductory to the averment that he turned the books over to his successor, we should think the court erred in sustaining the demurrer to that part of the answer; but the averments are all made and numbered in separate sub-divisions of the answer; and we infer from appellant’s argument that he relied upon the fact of his resignation as a sufficient defense of itself.

2 mandamus: public officer, The other portion of the answer demurred to is the statement that the plaintiff had an adequate remedy by replevin. We think such remedy would not be adequate, jf tpg p00ps COuld not be found, the plaintiff could only have obtained judgment for their value, and it might have been impossible to show their value. We should deem it very unsafe to hold that where a municipal officer conceals or withholds the books of the corporation, possibly to cover his own defaults, the only remedy of the corporation is by replevin. We do not understand that it is claimed by appellant that mandamus will not be proper in such case if the defendant is still in office. But it is said that the defendant being no longer in office, he was .not amenable to mandamus. Mandamus is the proper remedy to compel the performance of an official duty. At the expiration of a term of office, it is the official duty of the officer to surrender the books of his office. This duty, we think, so far as the remedy for its enforcement is concerned, does not become less an official duty because it is neglected until the office has expired.

III. The appellant complains of the findings of the court, but it is objected by apjiellee that the abstract does not show the evidence, and we think the objection is well taken.

There is a statement in the abstract of what the evidence proved, and what it tended to prove; but it is not an agreed statement, nor is it contained in a bill of exceptions. Such being the condition of the abstract, we cannot review the findings of the court.

Affirmed.