14 Kan. 381 | Kan. | 1875
The opinion of the court was delivered by
Two errors are alleged, first in refusing a continuance, and second in discharging a temporary restraining order. The case itself was one involving that question of frequent occurrence, the' validity of a county-seat election. The application was for an order restraining the county officers from moving their offices to the place declared by the commissioners as the result of the election, the newly-chosen county-seat. On the 1st of April the petition for an injunction was presented to the judge of the district court. The 22d of April was by him fixed for the hearing, and a temporary restraining order granted to remain in force until the application could be heard. On the 22d of April the plaintiff moved for a postponement of the hearing, and a continuance of the restraining order, which motion was overruled, and of this plaintiff complains. It is well settled that these matters of continuance are largely within the discretion of the trial court. Here no abuse of discretion is apparent, but on the contrary the ruling was evidently correct. The petition alleged that several hundred of the names on the petition for
The other error alleged was in discharging the temporary restraining order. Here too we see no error, or at least nothing to justify a reversal. The grounds for holding the election illegal, presented in the petition, which was verified, were, first, that the petition for the election did not contain the names of three-fifths of the legal electors, several hundred of them being forged, those of minors, etc., as heretofore stated; second, that the two elections (for no place received a majority at the first election,) were not held within fifty days after the presentation of the petition; third, that the two places declared to have received the highest number of votes at the first, and therefore the sole competitors at the second election did not in fact receive the highest number, and were erroneously so declared; and finally, that there was no such place as that declared the chosen county-seat. In reference • to these restraining orders in limine, it is to be borne in mind that it is not to be expected that the whole case will then be fully tried, so that the. court may properly require that a clear showing be made of a right in the plaintiff to relief, and a right which may be seriously impaired unless immediately protected. Where it is doubtful .what upon the final hearing may be ascertained to be the real facts of the case, and where the rights of the plaintiff are such as Avill suffer no serious injury if not enforced until the facts are finally and definitely determined, it oftentimes is the duty of the court, in the ex
So far as the matter of time is concerned, the petition was presented February 1st, and the elections held on the 11th and 25th of March, respectively. The first election was within the fifty days. This we think is all the statute requires. Gen. Stat., 297, § 5.
The two remaining allegations of the petition may be considered together. The place declared the newly-chosen county-seat is thus described in the proclamation of the result: “ Farmer City, situated as follows, 40 acres in S.E.J of N.W.£ of sec. 14; 30 acres off the S.W. qr. of the N.E. qr. of sec. 14, all in town 21, of range 23, in Linn county,
Probably the only matter affected by this decision is the question of costs, as, if the public press be reliable, subsequent elections have relocated the county-seat.
The order of the district judge is affirmed.