Colton v. Price

50 Ala. 424 | Ala. | 1874

PETERS, C. J.

The injunction was properly dissolved on the answer of .Price. Richards, the county treasurer, was merely a stakeholder, and had no personal interest in the matter in litigation, further than to know to whom to pay the salary, which he held for the person who might be found entitled to the office. Price was the defendant with whom the real merits of the case were contested. He claimed the office to which the salary was an incident, and rested his claim on an election by the people, and a commission from the governor. This gave him a primd fade right to the office. Ex parte Screws, at January term, 1873. He answered on oath, and on his own knowledge of the facts, and denied all the equities of the bill on which the injunction was granted. He denied that Colton was elected by the people, or that he was making any successful contest for the office claimed by both. Such an answer was sufficient to justify the dissolution of the injunction. In such a case, the answer of one defendant is sufficient. Y- v. Shep—, 44 Ala. 315 ; Long v. Brown, 4 Ala. 622; Dunlap v. Clements, 7 Ala. 539.

2. The bill was properly dismissed for want of equity. It does not allege that the remedy at law would be fruitless. One who, under pretence of an election, receives the fees of an office belonging to another, may be sued at law, in an action for money had and received, for the fees or salary which he may have received. 1 Chitty’s Pleadings, 100, n. 2. Unless it appears that this action would be abortive, a court of equity will not interfere. Such is not the case here.

There is no error in the proceedings of the court below, which is pointed out in the assignments of error. The decree is therefore, affirmed, with costs ; but, the appellant having died since the submission of the cause, the judgment of affirmance will be entered as of the date of the submission.