Page images
PDF
EPUB

830. Leave withdrawn, action dismissed, bond insufficient. When the attorney general shall have granted leave to a private relator to bring an action in the name of the state to try the title to an office, and it shall afterwards be shown to the satisfaction of the attorney general that the bond filed by such private relator is insufficient, or that the securities thereto are insolvent, the attorney general may recall and revoke such leave theretofore granted, and upon a certificate of the withdrawal and revocation by the attorney general. to the clerk of the court of the county where any such action is pending, it shall be the duty of the judge presiding, upon motion of the defendant, to dismiss the action.

1891, c. 595.

831. Arrest and bail of defendant usurping office. Whenever such action shall be brought against a person for usurping an office, the attorney general, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order shall be granted by a judge of the superior court for the arrest of such defendant, and holding him to bail; and thereupon he shall be arrested and held to bail in the manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to

arrest.

Code, s. 609; C. C. P., s. 369; 1883, c. 102.

832. Claim of several persons to office tried in one action. Where 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.

Code, s. 614; C. C. P., s. 374.

833. Trials expedited. All actions to try the title or right to any office, state, county or municipal, shall stand for trial at the return term of the summons, if a copy of the complaint shall have been served with the summons, at least thirty days before the return day thereof; and it shall be the duty of the judges to expedite the trial of such actions, and to give them precedence over all other actions, civil or criminal. But it shall be unlawful to appropriate any public funds to the payment of counsel fees in any such action.

Code, s. 616; 1901, c. 42; 1874-5, c. 173.

834. Action brought within ninety days after induction into office. All actions brought by a private relator, upon the leave of

[ocr errors]

the attorney general, to try the title to an office shall be brought, and a copy of the complaint served on the defendant, within ninety days after the induction of the defendant into the office to which the title is sought to be tried; and when it shall appear from the papers in the cause, or otherwise be shown to the satisfaction of the court that the summons and complaint have not been served within ninety days, it shall be the duty of the judge upon motion of defendant to dismiss the action at any time before the trial at the cost of the plaintiff.

1901, c. 519; 1903, c. 556.

835. Defendant's undertaking before answer. Before the defendant is permitted to answer or demur to the complaint he shall execute and file in the superior court clerk's office of the county wherein the suit is pending, an undertaking, with good and sufficient surety, in the sum of two hundred dollars, which may be increased from time to time, in the discretion of the judge, to be void upon condition that the defendant shall pay to the plaintiff all such costs and damages, including damages for the loss of such fees and emoluments as may or ought to have come into the hands of the defendant, as the plaintiff may recover.

1895, c. 105.

836. Possession of office not disturbed pending hearing. In any civil action pending in any of the courts of this state wherein the title to any office is involved, the defendant being in the possession of said office and discharging the duties thereof, shall continue therein pending such action, and no judge shall make any restraining order interfering with or enjoining such officer in the premises; and such officer shall, notwithstanding any such order, continue to exercise the duties of such office pending such litigation, and receive the emoluments thereof.

1899, c. 33.

837. Judgment by default and inquiry for failure of defendant to give bond. At any time after a duly verified complaint is filed alleging facts sufficient to entitle plaintiff to the office, whether such complaint is filed at the beginning of the action or later, the plaintiff may, upon ten days' notice to the defendant or his attorney of record, move before the resident judge or the judge riding the district at chambers, to require the defendant to give said undertaking; and it shall be the duty of the judge to require the defendant to give such undertaking within ten days, and if the undertaking shall not be so given, the judge shall render judgment in favor of plaintiff and against defendant for the recovery of the office and the costs, and a

judgment by default and inquiry to be executed at term for damages, including loss of fees and salary. Upon the filing of said judgment for the recovery of such office with the clerk, it shall be the duty of the clerk to issue and the sheriff to serve the necessary process to put plaintiff into possession of the office. In case defendant shall give the undertaking, the court, if judgment is rendered for plaintiff, shall render judgment against the defendant and his sureties for costs and damages, including loss of fees and salary: Provided, that nothing herein shall prevent the judge's extending, for cause, the time in which to give the undertaking.

1899, c. 49; 1895, c. 105, s. 2.

838. Service of summons and complaint. The service of the summons and complaint as herein before provided may be made by leaving a copy thereof at the last residence or business office of the defendant or defendants, and the same shall be held and deemed a legal service of the said summons and complaint.

1899, c. 126.

839. Judgment in such actions. In every such case judgment. shall be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall require.

Code, s. 610; C. C. P., s. 370.

840. Judgment for usurping office or franchise; fine. When the defendant, whether a natural person or a corporation, against whom such action shall have been brought, 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, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars.

Code, s. 615; R. C., c. 95; C. C. P., s. 375; Const., Art. IX, s. 5.

841. Mandamus to aid relator, when. Whenever in any civil action brought to try the title or right to hold any office, the judgment of the court shall be in favor of the relator in such action, it shall be the duty of the court to issue a writ of mandamus or such other process as may be necessary and proper to carry such judg ment into effect, and to induct the party so entitled into such office. 1885, c. 406, s. 1.

842. On appeal, occupant of office to give bond for fees. No appeal by the defendant from the judgment of the superior court in

such action to the supreme court shall stay the execution of the judgment, unless a justified undertaking be executed on the part of the appellant by one or more sureties, in a sum to be fixed by the court, conditioned that the appellant will pay to the party entitled to the same the salary, fees, emoluments and all moneys whatsoever received by such appellant by virtue or under color of his said office: Provided, that in no event shall said judgment be executed pending said appeal, unless a justified undertaking be executed on the part of the appellee by one or more persons in a sum to be fixed by the court, conditioned that the appellee will pay to the party entitled to the same the salary, fees, emoluments and all moneys whatsoever received by the appellee by virtue or under color of his said office during his occupancy thereof.

1885, c. 406, s. 2.

843. Relator inducted into office, when. If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be 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 within his power, belonging to the office from which he shall have been excluded. Code, s. 611; C. C. P., s. 371.

844. Damages by usurpation recovered. If judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded.

Code, s. 613; C. C. P., s. 373.

845. Action to recover forfeited property for state. Whenever any property, real or personal, shall be forfeited to the state, or to any officer for its use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer in any superior court.

Code, s. 621; C. C. P., s. 381.

XLI. RECEIVERS.

846. What judge appoints. Any judge of the superior court having authority to grant restraining orders and injunctions shall have the like jurisdiction in appointing receivers, and all motions to show cause shall be returnable as is provided for injunctions. Code, s. 379; C. C. P., s. 215; 1876-7, c. 223; 1879, c. 63; 1881, c. 51.

847. In what cases appointed. A receiver may be appointed1. Before judgment, on the application of either party, when he establishes an apparent right to property which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost, or materially injured or impaired; except in cases where judgment upon failure to answer may be had on application to the court.

2. After judgment, to carry the judgment into effect.

3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment.

4. In cases provided in chapter entitled Corporations and subchapter thereof entitled Receivers; and in like cases, of the property within this state of foreign corporations.

The subchapter entitled Receivers, in the chapter entitled Corporations, shall be applicable, as near as may be, to receivers appointed hereunder.

Code, s. 379; C. C. P., s. 215; 1876-7, c. 223; 1879, c. 63; 1881, c. 51.

Note. For appointment of receivers in proceedings supplemental to execution, see subchapter infra Supplemental Proceedings, s. 679.

848. Appointment refused, bond being given, when. In all cases where there is an application for the appointment of a receiver, upon the ground that the property or its rents and profits are in danger of being lost, or materially injured or impaired, or that a corporation defendant is insolvent or in imminent danger of insolvency, and the subject of the action is the recovery of a money demand, the judge before whom such application is made or pending shall have the discretionary power to refuse the appointment of a receiver, if the party against whom such relief is asked, whether a person, partnership or corporation, shall tender to the court an undertaking payable to the adverse party in an amount double the sum demanded by the plaintiff, with at least two sufficient sureties and duly justified according to law, conditioned for the payment of such amount as may be recovered in such action, and summary judgment may be taken upon said undertaking. In the progress of the action the court shall have power in its discretion to require additional sureties on such undertaking.

1885, c. 94.

849. Receiver's bond. A receiver appointed in an action or special proceeding must, before entering upon his duties, execute and file with the clerk of the court wherein the action is pending, an undertaking payable to the adverse party with at least two sufficient sureties in a penalty fixed by the judge making the appointment, conditioned for the faithful discharge of his duties as receiver. And

[blocks in formation]
« EelmineJätka »