60 P. 872 | Ariz. | 1900
In December, 1896, an election was held in the city of Tucson for the election of city officers. George ¡W- Oakes and- the appellant Samuel W. Finley were candidates for the office of city marshal. Upon the return and canvass of the votes cast at said election it was decided that Oakes had received the largest number of votes east, and a certificate of election was given him therefor. The appellant Samuel W. Finley contested the election in the district court in and for Pima County, and, as the result of such contest, obtained a judgment and decree from said court declaring and adjudging him to, be entitled to hold the office of city marshal, and that Oakes be ousted therefrom. Oakes appealed from said judgment to the supreme court of the territory, and obtained a reversal of the judgment of the district court, and a judgment that the district court enter a judgment for the contestee, Oakes. Oakes v. Finley, 5 Ariz. 390, 53 Pac. 173. Pending the appeal, Finley was desirous of drawing the salary attached to the office of city marshal, and gave a bond to the city of Tucson, appellee, in the sum of twenty-four hundred dollars, with the other appellants, William H. Barnes, James Finley, and Rosario Breña, as sureties. The condition of the bond is as follows, to wit: ‘ ‘ The condition of the above obligation is such that'whereas, on the ninth day of January, 1897, in the district court of the first judicial district of the. territory of Arizona in and for Pima County, in an action pending therein wherein Samuel W. Finley is contestant and George W. Oakes is contestee, the said Finley was adjudged to be the duly elected city marshal of the said city of Tucson; and whereas, the. said George W. Oakes has taken an appeal from said judgment to the supreme court of the territory of Arizona; and whereas, the. said Samuel W. Finley is desirous of receiving the salary for his services as such city marshal from the city of Tucson during the pendency of such appeal: Now, therefore, if, on appeal, or any new trial of said cause, he, the said Samuel W. Finley, be adjudged or decreed to be not entitled to such office, and if he,
Judgment upon the pleadings is a practice recognized by the courts of Arizona. Miles v. McCallan, 1 Ariz. 491, 3 Pac. 610. There is no express provision in 'our statute for a demurrer to the answer, and judgment may be rendered upon the pleadings when the answer does not deny-any of the material allegations of the complaint, or does not set up new matter constituting a defense. Botto v. Vandament, 67 Cal. 332, 7
The bond also measures the obligation to the city in such a way as to dispose of the further answer of the defendants,—to wit, that the city could recover, or ought to recover, the difference only between the amount Oakes did receive from the city for other services rendered and the fixed salary for city marshal. There might be something in the contention of the appellants if the bond provided that Finley would hold the.
Sloan, J., and Davis, J., concur.