Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-07-11
THE QUO WARRANTO.
judge O'Brien Grants the Writ in Ac.
c0rdance with Law and the De-
mands of Justice.

The argument before Judge O'Brien
Yesterday was of interest. At the morn
ing session Judge O'Brien had issued an
order in the quo warrante proceedings,
on the affidavit of Mr.. G. NJ. Conklin re-
curing Mr.. Cunningham to show cause
WHY he should hold the office of sheriff of
Santa Fe county.
The matter came up at the afternoon
session, when, although notice to show
cause had been properly served on Mr..
Cunningham, he did not appear before
the court, although in the court room.
Whereupon, there being no objection,
the solicitor general filed his information
for writ of quo warranto. This paper
is very full, setting out the election of
Conklin in 1892, his qualifications and
continuous service, together with the fact
that he had never been removed or in
any manner forfeited the office; and that
Cunningham had illegally and unlawfully
intruded himself into tho duties of the
same by taking the sheriff's oath of office
and giving the bond required by law.
After the reading of the information
the solicitor general moved the court for
IN order allowing the writ of que war
ranto to issue, returnable on next Mon
day.
At this point Judge Warren arose
| stating that he acted simply as anxious
curiae and not for Mr.. Cunningham, and
| opposed the motion, and suggested to the
court that such return would be coran1
non judice, that is not before the proper
| Judge, and void for tho reason that the
| writ could only be returnable during the
term time in which it was issued. He
| read extensively from the case of Wade
| vs.. Ashenfelter in support of this posi-
ton.
In reply the solicitor general cited the
same case with the authorities quoted in
it, the Compiled Laws, section 1929, and
| the amendments to the practice act OF
1891, showing that even final judgment
could be rendered in civil case out OF
term time. All that was asked here was
| that the writ should be returnable at an
early day so that issues could be Joined
| and that Conklin could know whether
Cunningham would then make IN ap.
pearance in the case, whether he would
disclaim the office or assert title to it; in
| which case he would have to set up his
claim to title. That the question of a
jury for the trial of any issues that might
be made, was not now under considera
ton, as it was possible that a jury might
| not now be necessary even it were per
| missible.
The court took this view of the case
| stating that the case of Wade vs.. Ashen
felter was decisive on tho point; and that
this court would construe all laws with
reference to tho trial of title to Office &c
that speedy hearing might be had; and
that this writ would issue returnable be
fore himself on next Monday, at the court
| house here, to be served by the U. s
marshal or his deputy five days before
that time.
On the return of this writ 1t will now
be necessary for Mr.. Cunningham tc
either disclaim and give up the office OIL
to show by what title, right or authority
he assumes to act as sheriff. This pro
ceeding will BIO governed entirely by com
mon law rules and procedure, as there are
no statutes in reference to it in New
Mexico.