19 Kan. 570 | Kan. | 1878
This was an action brought in the court below by Crawford against Hubbard upon the latter’s official bond as register of deeds of Harvey county, to recover the fees and emoluments of the said office from 12th January to 23d September 1874. The case was tried by the court, a jury having been waived. The court stated in writing the conclusions of fact found, separately from the conclusions of law. The court released the sureties on the official Fond, but rendered judgment in favor of Crawford for $347.25.
The counsel for defendant in error objects to the consideration of the case-made, and asks for a dismissal of the proceedings here for the reason that said case-made was prematurely filed before the time had arrived for the defendant in error to submit amendments. The suggestion against the case-made is pertinent and forcible, and we cannot consider any part of the proceedings therein embodied. But anticipating this result, the counsel for plaintiff in error has sufficiently protected the interests of his client by also attaching to the petition in error a certified transcript of the record of the district court. And thus we have properly before us for review, the pleadings in the case, the conclusions of fact and of law, the motion for a new trial, the exceptions taken to said conclusions of law, the judgment, and journal entries. We shall disregard the case-made and confine ourselves to the certified transcript of the proceedings of the court below.
The facts in the case are substantially these: Prior to 12th January 1874, Hubbard was the duly elected, qualified, and acting register of deeds of Harvey county; at the general election in November 1873, Crawford was a candidate for said office, and received the largest number of votes therefor; the board of county commissioners of Harvey county failed and refused to canvass the votes cast for said candidate at that election at their meeting held on Friday next following the election, and delayed their canvass of the votes till September 23d 1874; Crawford never filed his oath of office, nor
The main question at issue is, whether Hubbard, the prior incumbent, or Crawford, was entitled to the fees and emoluments of the office of register of deeds of Harvey county for the time during which the former held over. The question is one of easy solution. Express provision is made by the constitution of this state, that all county officers shall hold their offices until their successors shall be qualified. (Art. 9, section 3.) A register of deeds is a county officer, and before he can enter upon the duties of his office must execute to the state of Kansas, and file with the county clerk of his county, a bond, in the penal sum of two thousand dollars, with two or more sufficient sureties, to be approved by said clerk, and must also within twenty days after receiving official notice of his election, or within twenty days after the commencement of the term for which he was elected, take and subscribe the oath of office prescribed by law,, before some officer authorized to administer oaths, and deposit the same with his official bond, to be filed and’ preserved therewith. (Secs. 87, 173, ch. 25, Gen. Stat.) And the failure of a'register of deeds to file his official oath and bond as required by law vacates his office. (The State v. Matheny, 7 Kas. 327; Gen. Stat., ch. 25, § 179.) Hubbard was not an
It becomes our duty, upon the conclusions of fact, not only to reverse the judgment of the district court, but to remand the case with instructions to enter judgment for costs in favor of plaintiff in error, the defendant below. So. ordered.