Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-02-12
BECK IS Sheriff
Of M'LEAN COUNTY

Of M'LEAN COUN1Y
SUPREME COURT DECIDED FIGHT
FOR OFFICE OF COUNTY
SHERIFF.
Case Has Attracted Much Attention
in the State - Two Men Sworn in
WAS Made Test Case.
In y decision handed down yester-
day the supreme court reverses the
district court and dismisses the &C.
ton brought by Gilbert Holtan
against John A. Beck, for the pos
session of the Office of sheriff of Nc
Lean county. the effect of the decis-
ion being to confirm Beck in his Of
fee of sheriff and to knock out Hol-
tan. who was appointed by the coun-
ty commissioners, on the ground
that vacancy existed.
Beck was elected sheriff of Mclean
county at the last election, and at
the same time Sheridan county was
segregated from Mclean. Beck was
resident of McClusky, 50 it was al
legged in the case, at the time he ran
for Office, and was elected, and the
county commissioners at their meet
ing in January, declared the Office of
sheriff vacant, on the ground that
Beck was not resident of Mclean
county at the time he was elected.
Gilbert Holtan was appointed sher-
if, and brought an action against
Office. The district court rendered
a decision confirming Holtan in his
Office as sheriff and ousting Beck.
The supreme court reversed the de-
cisfOn and dismisses the action. The
syllabus of the court is as follows:
Gilbert Holtan. Plaintiff and Respon.
dent, vs. John A. Beck, Defendant
and Appellant.
1. In an action brought under chap
ter rs of the code of civil procedure
for the purpose of trying title to the
Office of sheriff of Mclean county it
appeared from admissions of the
pleadings that defendant and appel
liant received a majority of the votes
cast for the Office of sheriff of said
county at the general election held
in Mclean county in November, 1908;
that he was declared to be elected
by the county board of canvassers
and certificate of election issued
to him by the county AUDITOR, that
he qualified by taking the oath of
office and filing good and sufficient
official bond which was duly APPROX.
ed by the board Of county commits
sioners Of Mclean county: that he
thereupon entered upon and perform.
ed the duties of said Office Of .sher-
III and was, at the beginning of said
action, exercising the functions of
said office, claiming title thereto and
refusing to surrender the>same to the
plaintiff as his successor in office.
On the trial of said action, plaintiff,
IN support Of his title to said Office,
over defendants objection, offered
IN evidence parts of the minutes of
the board of county commissioners of
Mclean county, reciting that on jan
uary 9TH, 1909, at a regular meeting
OF the board resolution was passed,
declaring the Office of sheriff of said
county to be vacant by reason of the
fact that John A. Beck, the party
elected thereto, was not a resident of
Mclean county as then constituted:
and that at subsequent meeting, on
January 8, 1909, said board appoint
ed Gilbert HOltan as sheriff of said
county and accepted his official bond.
Plaintiff also offered in evidence a
primary election petition of defend
ant, John A. Beck, in part of which
he stated under oath that on March
IA, 1908, he was resident of Nc
which at the time of trial
and at all times after December "a,
1908, was in the newly segregated
of Sheridan: also a copy of
the poll list of McClusky precinct
showing that on June "a. 1908, J. a.
Beck voted at primary election held
in that precinct. Upon the introduce
ton of this testimony plaintiff rested
and defendant offered no testimony
whatever.
Held. that plaintiff has failed by
competent evidence to prove the al
legations necessary to sustain his &C.
ton and that the trial court should
have granted the motion made by de-
fendant at the close of plaintiffs ties.
timony to dismiss the action. g.
(Syllabus by the cOurt) 2
= Appeal from District Court. Nc
Lean county, Hon. w. H. Winches-
ter, Judge.
Civil action bv Gilbert Holtan
against John A. Beck for the purpose
of obtaining the remedy formerly oh.
tainable by the writ of quo warrantc
in trying the opposing claims of
plaintiff and defendant to the Office
of sheriff Of Mclean county. A judg-
ment was entered declaring the
plaintiff entitled to the Office and
ousting defendant: from which judg.
ment defendant appeals.
Judgment reversed and action dis
missed.
Hyland & Nuessle. attorneys for
appellant
. McCulloch. & Gibson, (Engerud,
Holt & Frame of counseD, attorneys
for rocnopAopt