12 Kan. 459 | Kan. | 1874
The opinion of the court was delivered by
This case was submitted to the district court upon an agreed case, as authorized by § 525 of the civil code. It is objected that all the necessary parties were not before the court, and that the question was not properly submitted. Miller was an acting justice of the peace; Frazer claimed to have been elected his successor, and this was. the question submitted. This presented a question “ which might be the subject of a civil action” between these parties, and could therefore be submitted in this manner. There was no necessity of making the other acting justice a party to this submission, even though the tenure by which he held his office might be an important fact in determining the question between these contestants. Frazer was not seeking to oust the other justice. He claimed the right to occupy Miller’s office, and they two were the only necessary or proper parties to the controversy.
The material facts in the case are as follows: In April 1871, Miller and one Thomas Wheeler were duly elected and
As this was an agreed case, without plaintiff or defendant, the judgment should have been to dismiss the matter, and divide the costs between the parties; and the case will be remanded with instructions to so dispose of the case. The judgment in this court will carry costs against the defendant in error. As the spring election (for 1874) is near at hand, we. suggest that at such election.one justice be elected by the voters of Clay Center township. Such justice and Frazer will then be the unquestioned justices, and any differences between them as to whom each succeeds can be settled by the commissioners under the section cited.