7 How. Pr. 282 | N.Y. Sup. Ct. | 1852
This is an application under the 51st, 52d and 53d sections of 1 R. S. 125, and the 438th section of the Code, to compel Mr. Cook to deliver to the applicant, Mr. Welch, the books and papers appertaining to the office of state treasurer.
The first question I propose to consider in this case, is the objection raised to my jurisdiction to entertain this application. By section 51 (1 R. S. 125), jurisdiction to entertain such proceedings was conferred upon the chancellor, any justice of the Supreme Court, circuit judge, &c.; and by the 16th section of the judiciary act of May 12th, 1847, the justices of the present Supreme Court are invested with all the jurisdiction and powers of the chancellor, the justices of the Supreme Court, vice chancellors and circuit judges (Laws of 1847, p. 323, § 16). Before the passage of this act, the chancellor and justices of the Su7
I propose in the next place to consider the effect of the judgment of the Supreme Court in the suit of The People vs. James M. Cook, the record of which is produced before me on this application. It appears by this record that it was adjudged and determined in that suit, “ that Mr. Cook was guilty of usurping, intruding into, and unlawfully holding and exercising the office of state treasurer, and the rights and franchises appertaining thereto;' and that he be excluded, ousted and removed therefrom, and that the applicant, Benjamin Welch jr, is entitled to the said office, and' the rights and franchises thereof.” The rule is an elementary one in our laws that the judgment of a court of competent jurisdiction directly upon the point is, as evidence, conclusive between the same parties upon the same matter directly in question in another court (1 Phil Ev. .333). This rule h°"
It becomes important, therefore, to inquire what this judgment settles. It is admitted on all hands that it settles the question between these parties that Mr. Cook is a usurper of the office, and not entitled to hold the same, and that the petitioner, Mr. Welch, is entitled to the office. It is claimed by the counsel for the petitioner, that the rendition of the judgment operates per se, to oust Mr. Cook and exclude him from the office, and also to establish the right of Mr. Welch thereto, and that, upon taking the official oath and filing the bond required by the statute, he becomes virtually installed into the office. The counsel for Mr. Cook insists that the judgment has no such effect; that it only establishes the fact that Cook is not entitled to the office, and that Welch is; and that the judgment must be executed by some process or mandate of the court before Cook is ousted or Welch put in. This is an important question in the case, as will be seen when we come to consider the effect of the appeal from the judgment. The 441st section of the Code, which is substantially the 48th section of 2 R. S. 585, provides that when the defendant “ shall be adjudged guilty of usurping or intruding into or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise or privilege.” By section .437 of the Code, which is substantially section 32 of 2 R. S. 582. It is provided that “ the judgment be rendered upon the right of the person so alleged to be entitled ” to the office, “ and the same be in favor of such person, he shall he entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office, and it' shall be his duty, immediately thereafter, to demand of the defendant in the action, all the books and papers, in his custody or in his power, belonging to the office from which he shall have
The statute therefore is, if judgment he rendered upon the right of the party, &c., he shall be entitled, upon taking the oath and executing the bond, to take upon himself the execution of the office, and it makes it his duty immediately thereafter to demand of the defendant the books and papers belonging to the office from which he shall have been excluded. From which he shall have been excluded by what! The statute itself furnishes the answer; for it speaks of nothing but the rendition of the judgment, and gives to the party entitled to the office, upon the rendition of the judgment, the right at once to take upon himself the execution of the office, on taking the oath and filing his bond
I have looked very carefully into the modern reports of Westminster Hall, and I have not been able to find any such use made of this writ; and the courts in England treat these judgments as actually ousting and removing the defendant from the office. It is said, if a defendant make title to a corporation office as being elected under the mayoralty of a particular person, on issue joined, whether that person were mayor or not, a record of ouster against
But whatever may be the effect of such a judgment in England, I apprehend that under our statutes the rendition of the judgment operates as an actual ouster and exclusion from the office. And such being the effect of the judgment in this case, I take it to be very clear that the appeal from it can not reinstate Mr. Cook. The judgment stands in full force and effect pending the appeal, and until reversed.
It is contended, however, by the counsel for Mr. Cook, that the appeal from this judgment to the Court of Appeals, operates as a stay of all proceedings upon it. This case is governed by section 342 of the Code, which provides that the perfecting of the appeal and giving the undertaking shall stay all proceedings in the court below upon the judgment appealed from, except when the judgment directs the sale of perishable property. The very language of the section confines the stay to proceedings in the court below upon the judgment. The proceedings instituted before me are not proceedings in the court below; nor are they proceedings in the suit (1 R. S. 125, § 51, 52, 57). They are not even proceedings upon the judgment; though the judgment, it is true, is used as evidence of what it determines. Our courts have construed the stay of proceedings provided by the statute on appeals, as confined to proceedings in the suit in which the decree or judgment appealed from is made (4 Sandf. Ch R. 390; 3 Paige R. 381,385; 3 Sandf. S. C. R. 740). The stay does not prevent the party who is successful below from prosecuting in another court, while the appeal is pending, a demand which was involved in the former suit and not decided by the decree (4 Sanf. Ch. R. 390); and it was held in the case of Buckley vs. Keteltas (3 Sandf S. C. R. 740), that the filing with the county clerk of a docket of a judgment entered in that court, and docketing the same with such clerk, is not a proceeding which is stayed by an appeal from the judgment to the Court of Appeals, for the reason that it is not a proceeding in the court below. The court say, in
It has been shown, I think, that upon the rendition of the judgment in the suit of the People vs. Cook, he became ousted and excluded from this office; that upon taking the official oath and filing his bond, Mr. Welch became eo instanti invested with the office
The present is a much stronger case than the one before Judge Kent, for here the court have given a judgment of ouster against the defendant, while in the case ex parte Heath (3 Hill R. 43), upon which Judge Kent acted, the case was before the Supreme Court on mandamus, and they had only decided upon the right of the relator, but had not given a judgment of ouster, against the party holding and exercising the office. It would be a very easy matter to vindicate the law upon the highest considerations of public policy and expediency as we have determined and administered it in this case. But as we have nothing to do, but administer the law as we find it, I will only say, it seems to me to be eminently right and proper that after the deliberate judgment of the Supreme Court, giving this office to Mr. Welch, he should be put in possession of the books and papers belonging to it. There are now none of the difficulties in the case which existed at the time the former application was made to Justice Watson. The stipulation has expired by its own limitation, and the judgment of the Supreme Court has been amended in the respect in which it was deemed to be defective. I therefore order and direct, that the respondent deliver said books and papers to the petitioner, and as the statute has made this the only mode of enforcing the delivery, the order must be that a warrant of commitment issue to the sheriff of the county of Albany
This is what is called taking possession .of the office (The People vs. Stevens, 5 Hill, 625, per Nelson, Ch. J.)