Missouri Valley times. [volume] (Missouri Valley, Iowa) 1874-1931, 1899-02-09


subject the city to loss; that the de.
aonuane IL lhsolvent, and the relator is
sMsa.noue remedy at law for damages.
"a. racls sre ais" alleged which show that
ans ueaeLuant was. formally at least.
~ street commissioner. and
onaI the appointment was illegal The
peelIlon as amended fails to show that
the relator is in possession of the oft;o co
d ~ 4IionIhroversy, and discharglng its
o uuti ~ PUT does show that the ;defend-
office under claim by virtna Of On om quo
t poantment made by the body in which
t tho appointing power was vested, and
, .laae o ne was In possession of part, If
=. .,ot 80. ali, OF tne property which pertains
w .ae olpoe; The answer contains q
general aenial, and alleges that the de.
day of April, 1897, the duly nmalifSed
and acting street commissioner and
has s ,."ce been engaged in performing
the dut1vs of Office. The answer also
contains statement as to the amount
of work the defendant has done az
street commissioner. The evidence
shows that although the relator claim
ed to act as street commissioner after
the 9Th day Of April, 1897, he was viz
tually ousted from the Office on the
18th day of April by officers of the
city before this action was commenced
and, after thst date the defendant per-
formed the duties of the Office uutil
the Injunction was served. 1t thus ap
pears from the pleadiugs and also
from the evidence that when the
detltion was filed, the defendant was
IN actual possession of the office in
question and discharging its duties.
The plaintiff relies upon section 1885
OF the Code of 1873, and the cases of
District Up. Y. Barrett, AZ Iowa, ll0,I
Cochran Y. McCleary, 90 Iowa, rs, and
State Y, Simpkins. u Iowa, SIG, 42 N.
w. 516. as authorities for the action
taken by the district court. The stat
ute cited authorized an injunction in
some ACTIONS brought by ordinary pro-
ceedlngs, but 1t does not necessarily |
apply to such actions as this. The
nrst case cited was an attempt to de-
termine which of two persons had the
right to teach school, and was held not |
TO be the proper method of datarmin. /
ing questions Of that characoer. n
was sssid that a plain and adequate
remedy was provided by law. and 1t
was suggested that had such an action
been brought 1t might have been aided
by Injunction, to the end that school
might continue until the action should
De determined. In the case of Coch-
ran v. McCleary it was decided that
the right to a public office or franchise
cannot be decided in equity upon an
original bill for an injunction, but left
undetermined the question as to the
right to an injunction as auxiliary to
the main proceeding. In the case of
State v. Simpkins, which was an
action in the nature of quo wsrran-
to, it was held that the Injunction
therein was improvidently issued, and
the only reason given for that conclus.
ION was that "the action was COM
menced 10y the county attorney in the
name OF the sta>e, and there was no
ground for an Injunction, their being
no proper parties to execute an injunc. |
ton bond" The question now under
consideration WAS not discussed nor |
decided in that case. We do not think |
any of the authorities relied upon b. |
the plrlntiif arelin point, Our conclus-
ion Oh this 0ranch of the case is that
in view of the fact that the relator was
not dlscharging the duties of the office |
in question, and the defendant was not
in possession of the Office and discharg-
ing its duties, the injunction was an
attempt to transfer from the defendant
to the relat0r, in advance of the deter-
mination of the case at law, the pos
session of the office, that such raliet
was unauthorized, and that the iniunc-
t!on should not have been issued.
s. The district court adjndged that
the rela' or WAS entitled to the office in
question, and that the defendant be
oustsd from y, and restrained from In
any manner Interfering with the reIs,-
tor III diAch.rglng the duties of the
office. The district court also found
that motion to dissolve the injunc-
ton which was flied by the defendant
should be oyerrnled. We are of the
opinion, for the reason given, that it
shoI;ld have meen sustained IT. fol-
lows from what wa have said that the
Jud9msnt ut custer is correct, and
shnnla he enforced, and that su much
NJ he Judgment az .ava effect to the
injunction proceedings ia erroneous.
We are not advised by the record nor
by the arguments of counsel whether
SO much of the judgment as we find
to be erroneous now has any practical
effect, and in this condition of the
record We find necessary to remand the
cause to the district court for such
further proceedings, if any, respecting
relief based upon the amendment to
the petition and injunction, in harmony
with this opinion. as may be desirable
and proper Modified and affirmed.