7 Utah 352 | Utah | 1891
The people of the Territory of Utah, by Walter Murphy, prosecuting attorney of Salt Lake county, on relation of Richard W. Young, William J. Tuddenham, and John Eewson Smith, filed complaint in the third district court, alleging, among other things, that Salt Lake City is a city of the first class, divided into five municipal wards; that on the 10th day of Eebruary, 1890, there was an election held in said city for the purpose of electing
To which complaint the defendants filed their demurrer on the grounds; (1) Said amended complaint does not state facts sufficient to constitute a cause of action. (2) Misjoinder of parties plaintiff, in that each of the relators, Young, Smith, and Tuddenham, claims to be entitled to an office which is separate and distinct from the office or franchise claimed by each of his co-relators, and they are not authorized by statute to be joined in an action to establish their titles to separate and distinct offices. (3) Misjoinder of parties defendant in said action, in that it appears that each of the said defendants, Cohn, RToble, and Hall, has usurped and intruded into and is holding an office separate and distinct from the office which it is alleged each of his co-defendants is usurping and holding. (4) Several causes of action have been
The court overruled the demurrer. The appellants failing to answer, judgment was entered in favor of the relators and against the appellants as prayed, and on this ruling and judgment the appellants appeal.
This action is brought by the prosecuting attorney, under sections 3529, 3530, Comp. Laws 1888, to determine the rights of the relators to such office. By section 1761, Id., three councilmen were to be elected from this ward at the same time, each to hold the office for two years. The term commences and ends at the same time. Under the admission in the pleadings the appellants were not elected by a majority of the votes of the ward, but have unlawfully usurped the office, and now hold it against the rights of the people and of the relators, who were each duly elected at such election. The contention by the appellants* counsel, that neither of the relators was elected to fill either one of the particular offices held by any one of the appellants, shows that, if suit was brought by one of the relators for the position usurped by one of the appellants, great difficulty would be found in ascertaining what particular office or place should be assigned to the claimant, and this contention argues strongly in favor of the judgment asked by the relators, and that it was a proper judgment in their favor.
“ When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons in order to try their respective rights to such office or franchise.” Comp. Laws 1888, § 3534. The joinder of defendants under this statute was