Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1894-09-12

ou uay OF July, 1898, ne obtained an order
upon the said Cunningham from the dis
trict court of said county, returnable the
10th day of July, 1893, to show cause why
writ of quo warranto should not be
issued against him to determine the title
to the said Office of sheriff of said county
as between him, the respondent, and the
said Cunningham, the said writ being
declared by the respondent, "The proper
and legal mode for determining the same,
and that the said order was duly served
upon the said Cunningham. Responder,
thereupon declines to comply with the
requirements of the said alternative writ
of mandamus, except to show cause, and
submits that the said writ should not bt
made peremptory against him.
1t appears from the record in the IN
junction proceeding that the injunction
therein granted was dissolved on the 8tt
day of July, 1898. The information il
the nature of quo warranto referred to by
respondent is now pending and undeter
mined in the district court of the Isl
judicial district.
On the 7th day of July the motion o
respondent to quash the service and re-
| turn of said alternative writ upon him
was overruled, to which order respondent
excepted. On the 9Th day of July, 1898
respondent moved the court for jury tc
try the issues of fact Joined in the cause
upon the allegations contained in the
writ and the answer thereto, which said
motion the court overruled, and the re-
spondent then and there excepted to such
judgment.
On the 9Th day of July, 1898, the re.
lator, Cunningham, moved for a per.
emptory
WRIT OF MANDAMUs
upon the alternative writ, for the reason
that no material issues of fact were
Joined, and only questions of law were
raised, which said motion was resisted by
respondent, but the court granted the
same, ordering the said respondent to
turn over to the said petitioner all books
and papers pertaining to the office OF
said sheriff of SAID county, and also the
Jail thereof, by July II, 1893, to which
action of the court the respondent e1.
cepted. Respondent, then and there, on
the said 8th day of July, 1898, moved the
court for new trial, and also for an AT.
rest of judgment, which motion the court
overruled and to which judgment re-
spondent then and there bjected and ex
cepted and took an appeal to this court
On the 11th day of July, 1898, the per,
emptory writ of mandamus was issued
commanding said Conklin to surrender
and deliver to said Cunningham all books
papers and property pertaining to the
sheriffalty of the county of Santa Fe, or
or before the 18th day of July, 1898
which order was duly complied with OF
the said 18th day of July, 1893.
The plaintiff in error assigns the follow
ing as
ERRORS IN THE COURT BELOW:
First-In denying the motion of plain
tiff in error to quash the return and ser
vice of the alternative writ of mandamus
upon the several grounds in said motion
stated.
Second-1n denying the motion Of
plaintiff in error for jury, upon the
several grounds in said motion stated.
Third-In granting the motion of de-
fendant in error for mptory writ oil
mandamus, upon the several grounds
therein stated.
Fourth-In granting remptory
writ of mandamus.
Fifth-In granting said perem ptor,
writ of mandamus it appearing from thu
record that no demand had been made
upon said Charles M. Conklin for the Of
fee in question.
Sixth-In denying the motion of plain
tiff in error for new trial and arrest o
judgment, upon the several grounds
therein stated.
Before considering these alleged errors
we will present the attitude in which tn,
plaintiff in error appears by the repug
nant allegations of his return. Respond
ent denied in his answer that he wal
summarily removed from the office o
sheriff of said county on the 9th day o
June, 1898; denied that the relator, Gun
ningham, was appointed to the said offic,
on the 9th day of June, 1898, and was il
possession of said Office with any right O
title, and claims that he, the respondent
was in possession of said office, and dis
charging the duties thereof on the I'll
day of July, 1898, in disregard of tn
order Of the executive of the territory re
moving him and
APPOINTING W. p. CUNNINGHAM,
Respondent thereafter in said answe
shows that on the Sd day of July, 1898, h