Sweatt v. Faville

23 Iowa 321 | Iowa | 1867

Wright, J.

i. injunction: petition. Several of the points made by the appellants strike at the sufficiency of the original petition, The amended petition, however, covers the whole ground, was intended to and did take* the place of the original, and we look to it -as a consequence, to determine plaintiff’s right to the relief asked. He had a right to amend; a right to make his claim to relief as clear and perfect as possible, and it is upon the last, and not upon the first petition, he stood in the court below, and stands here, in his appeal to the chancellor.-. Of this there can be no doubt, when it is remarked that there is no departure from the original cause of action, nor conflict or inconsistency in the two pleadings. We turn, therefore, to ’ the contents of the amended petition, to ascertain the case made, and determine, whether this injunction should or should not have been dissolved. For though improperly issued, on account of defects in the original petition, if these have been cured, then there was no error 'in overruling this motion.

g. — re-ioeation of county seat. ■ The-pleader states that he is a citizen, legal voter,,and tax payer of Mitchell county, and the owner of property in, and a resident of the town of Mitchell, , interested directly m the location and retention of the county seat at that place; that since 1860, this has been tbe county seat, and still is, legally and of right; that in January, 1861, a petition was presented to tbe board of supervisors of said county, praying an order for a vote for tbe re-location of said county seat, and to remove it from Mitcbell to Osage; that tbougb said petition was not signed, when finally considered, by a majority of tbe legal' voters of said county, and tbougb a majority of said voters filed tbeir remonstrance, the prayer was granted and tbe vote ordered; that at tbe election so ordered, 953 votes were cast, of which, 486 were for Osage, and 467 for Mitcbell; that Osage received 102 illegal votes in tbe township of Osage, and 11 like'votes in other townships — giving tbe names of tbe voters; that a large majority of tbe legal votes cast", were in favor of Mitcbell; that tbe board of supervisors, nevertheless, in April, 1861, canvassed tbe votes, and declared tbe result to be in favor of Osage, by a majority of 19, and tbougb Mitchell, still, is legally tbe county seat, they ordered' all the county officers to remove tbeir offices to Osage, and on tbe 6th of June, next following, made a further order instructing their clerk to carry out and enforce tbe order first made; that unless restrained, defendants (tbe supervisors and county officers), will remove said offices and tbe eounty records, and proceedings will be instituted by them to compel such removal, etc.

Tbe prayer is for an injunction to restrain such removal, for a decree declaring said election void, and that Mitcbell is the legal county seat, and for general relief.

We first consider, whether, from tbe showing made, tbe writ was properly issued. And here one objection is that petitioners’ remedy was by a new vote as provided by Rev. § 231 and Laws 1862, p. 52.

It is true that under tbe law a new vote, tbe requisite petition being presented, may be taken every three years. But this is not tbe only remedy, if remedy it can be called. If the election was held without authority; if, in fact, a majority of the legal votes were not cast in favor of the new point; if there was fraud or illegality of any kind sufficient to invalidate the proceedings, those in interest, and having a right to complain, must have some other remedy than by the new election provided by the statute. For, if, by the law, the records should not be. removed, some remedy should be given to restrain the same. And the question is, whether injunction is that remedy.

Our law does not provide any method for contest in these cases, as it. does to individuals claiming the same office. The case of Cochran v. McCleary (22 Iowa, 75) is, therefore, not applicable. That the legislature should make some provision on this subject, and give a speedy, plain and summary method for settling these most warmly contested, and to the public, important controversies, each day renders more and more manifest. Our courts should not be required to pass upon them in the first instance, but a tribunal should be provided where the whole matter could be speedily tried and determined. In the absence of such legislation, can equity grant the relief asked? The case of Rice v. Smith (9 Iowa, 570) is an authority for the exercise of the power, as prayed for in this petition, and we are content to there leave it. In view of all the decisions, and especially the limited duties and powers of . the board of canvassers under the writ of mandamus, we'know of no other adequate remedy in these cases.

3_statute of limitations. The next and only remaining question of importance is, whether plaintiff’s action is barred by the statute of limitations, the command of which is, that it mus£ frayg been br0Ught within five years next after the cause thereof accrued. Rev. §§ 2740, 2743.

The vote was taken in April, 1861, the petition filed October 16, 1865, and the writ served January 1, 1866. The notice was placed in the hands of one not an officer, and served November 30,1866. It will thus be seen, that the petition was filed and the writ served within five years, but that the orignal notice was not served until after.

"Whether the cause of action within the meaning of the statute is the alleged illegal election, or the purpose of the officers to remove the records and offices in pursuance thereof; whether, as plaintiff claims, it is a contim uously accruing cause of action; whether the objection can be taken by motion, or only by answer — all these questions we pass, placing our ruling on the ground, that the action was commenced for the purposes of the present inquiry, at least, by the service of the writ of injunction, and as this was in time, the motion as to this objection was properly overruled.

It is true that section 2744 (being a part of the chapter on “limitation of actions,”) provides, that the delivery of the original notice to the sheriff, or the actual service of the notice by another person, is the commencement of the action. But we do not believe that it therefore necessarily follows that a case may not, within the meaning of the statute, be treated as brought, though commenced. otherwise than thus prescribed. To illustrate: The injunction was asked in this case as an independent means of relief, not as auxiliary to other proceedings. It was directed to the defendants by name, and advised them fully of the prayer of the petition, and of their duty to obey its mandate. They all acknowledged service, and the sheriff made his return, as commanded, to the next term of the court.

After this, the board of supervisors took no action whatever in relation to said proceeding, nor have they ever ordered any defense of the same. The only party ■now appearing and moving to dissolve, is one of the ■board, a citizen and tax payer, and interested in the removal of the county seat to Osage. Now, it seems to us, that under such circumstances, this being a special proceeding, the action was not barred, though the original notice was not served until more than five years after said election and the order made by the board. That is to say, assuming, that the cause of action accrued in April, 1861, we think that the action was commenced at least when the writ was served. There is no provision in the statute regulating the writ, that an original notice shall be issued. And while we do not hold that one should not be served, we do hold that when, by the writ, parties are restrained, from the commission of the threatened •wrong- or act, the action is commenced, and that the injunction should not be dissolved because the notice was not in the sheriff’s han,ds in the one instance or served in the other, within the five years.

The writ' is granted by the order of a judicial officer, either in term time or vacation. Defendant may, in the discretion of the judge, have opportunity to show cause why the writ may not be granted, or he may before the next term, apply to have the same modified or vacated. So the judge has power in vacation, and before the next term to punish the party for a violation of the command of the writ, to require him to give security, and to issue his precept to bring the alleged delinquent before him. And thus we see that, giving the statute a fair and liberal construction, this special proceeding should and must be regarded as commenced at least by the sérvice of the writ. The defendants know, are informed by it, what relief is asked, and what they are to do, just as certainly as by the original notice, and even more so. If there' was a formal notice in the writ itself, there would be no question as to its sufficiency. And yet, suppose it omitted, but tbe defendants are nevertheless advised of the filing of the petition and the relief asked, and of .the whole object of the proceeding (as they were in this case), would it not be giving too strict a construction to the statute to say that the action was not then “ commenced.” Looking at the whole tenor and purview of our legislation, the nature and object of this writ, we cannot but thus conclude ; and, therefore, hold that this objection was not well taken.

4._original notice. It only remains to add, that there does not seem to have been any unreasonable delay in the service of the notice, after granting the writ. Not only so, but the motion was made after its service, and the eases of Leslie v. Hess (5 Paige, 85), and Hightour v. Rush (2 Hayw. 361), relied upon by appellant, are not applicable. Nor is the form or sufficiency of said notice' material, since appellant has appeared and invoked the action of the court. The jurat to the amended petition is not defective for the ground stated, for it does show affirmatively that it was sworn to by the petitioner.

Affirmed.