Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-06-15
The Sheriff Moody Case.

~ ~ AAPP~S&1s
The Sheriff Moody Case.
State Of North Dakota, ex rel. c. N.
Erich, attorney general, petitioner, VS..
the District Court of the Fourth judici.
al district; w. s. Lauder, Judge Of the
Fourth judicial district and s. L.
Glaspell, Judge Of the Fifth Judicial
district of said state, respondent.
Proceeding in mandamus on the re.
lation Of the attorney general against
the district court of the Fourth judicial
district; s.. L. Glaspell, presiding
judge. Alternative writ quashed and
proceeding dismissed.
c., N. Erich, attorney general, Char.
les E. Wolfe, Aaron J. Bessie and Nor.
rill & Engerud, for relator.
w. S. LAUDER and Purcell, Bradley &
Divet, for respondents. r-<- 49,,
The opinion lis by Cochran, J. ~
This was an action commenced by
the attorney general in the name of
the state against George e. Moody,
the sheriff of Richland county, under
chapter "a, Code Of Civil Procedure,
(sections SAL, STAB, ct seq, Revised
Codes) for the purpose of securing his
removal from office.
The complaint alleged as grounds
for removal many acts Of malfeasance,
misfeasance ind nonfeasance in Office.
After the encement of the action
an application was made, upon notice,
for an order suspending the defendant
from the functions of his office until
the final determination of the case up
on the merits. pursuant to section 1853,
Revised Codes Judge Lauder of the
Fourth judicial district, with the con-
sent of the counsel on either side, re-
quested Judge Glaspell Of the Fifth
judicial district to take jurisdiction OF
and to try and determine said motion
and the case. The motion to suspend
was taken up for hearing by Judge
Glaspen pursuant to said request.
The counsel for defendant Moody ap-
peared specially and moved to dismiss
4 the motion for suspension upon the
ground that the court was without
jurisdiction of the action, etc, and
Judge Glaspell granted the petition of
the defendant. The syllabus by the
court is as follows:
In an action prosecuted in the
name of the state, on the relation Of
the attorney general, for the purpose
Of removing q sheriff from Office for
alleged acts Of malfeasance founded
upon section STAB, ct seq, Revised
Codes, in which action a motion to
suspend the officer pending trial, pur-
suant to section 1863, Revised Codes,
was made, the district court, on objec-
tion OF the defendant decided that it
was without jurisdiction to suspend
and without authority to try defendant
for his removal from Office In this form
Of action and dismissed the motion
j and case. This was a judicial deter
mination by the court OF q matter
properly before II and, whether right
or wrong, will not be reviewed BY
mandamus. Relator's remedy is by
appeal
2 The rule that an inferior court
4 will be required by mandamus to pro.
coed and hear case properly before
it, bnt which II has refused TO hear
! for the mistaken reason that It Il With.
out Jurisdiction, has no application
{ where the court has taken jurisdiction
Of the case and. Ii the exercise o. the
judicial function, has decided upon 4
4 question submit tied TO II for determdna-
! tiun that the action N witho,it alithori-
w d INV u acconplish the desired