44 Ga. 501 | Ga. | 1871
1. This is a proceeding, under sections 161,166 of the Revised Code, to require the delivery of the books and papers of an office to a newly elected and commissioned officer, by the former incumbent. It is not intended as a mode of trying the right of either party to the office. That, by the long established practice of the country, is by writ of quo warranto. These provisions of the Code look solely to the retention of the books, papers, and other property of an office, by an incumbent against the newly elected and commissioned officer.
The first section declares that when any office is “vacated,”
Very clearly, also, under this statute, a jury trial was not contemplated. It is a summary proceeding, leaving the parties to the writ of quo warranto. The action of the Court does not settle the right of either party to the office, but simply that a vacancy had existed, that a successor had been qualified according to the forms of law. Even if the facts were disputed, it is for the Judge to try it. The result is merely to say who shall have the books, etc., and not to decide, except, prima fade, the right to the office.
2. The answer sets up that the complainant did not take the oath and give the bond within the time required by law. We think it is, perhaps, legitimate to inquire, even in a case like this, into the question of “ qualification.” It is said, in section 126 of the Code, that an office is vacated if the person elect fail to qualify and give bond within the time prescribed by law. We are clear, however, that this means a failure, that it only applies to cases when the officer is in fault. The simple statement that the oath was not taken and the bond filed within the time is not, in our judgment, sufficient.