The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-02-12
IN THE SUPREME COURT.

state of North Dakota, October term,
1909. H,
Gilbert Holtan, plaintiff and respond
ent VS.. John A. Beck, defendant and
appellant.
/. In an action brought under chap
ter Is of the code of civil procedure
for the purpose of trying title to the
office of sheriff of Mclean county it
appeared from admission of the plead
ings that defendant and appellant re-
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 a certificate of
election issued to him by the county
auditor; that he qualified by taking
the oath of Office and filing a good and
sufficient official bond which was duly
approved by the board of county COM
missioners of Mclean county; that ne
thereupon entered upon and perform
ed the duties of said Office of sheriff
and was, at the beginning of said ac-
ton, exercising the functions of said
Office. claiming title thereto and refus-
ing to surrender the same to the plain
tiff as his successor in Office. On the
trial of said action, plaintiff, in support
of his title to office. over Defendants
objection, offered in evidence parts OF
the minutes of the board of county
commissioners. of Mclean county, re-
citing that on Jan. z, 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 resi-
dent of Mclean county as then consti-
tuted; and that at subsequent meet
ing. on Jan. 8, 1909, said board ap-
pointed 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 a resident of McCiusky,
which at the time or the trial and at
all times after December "A. 1908, was
i'm the newly segregated county or
sheridan; also copy of the poll list
Of McClusky precinct showing that on
June "a, 1908, J. A. Beck voted at pri-
mary election held in that precinct.
Upon the introduction of this testi-
mony plaintiff rested and defendant
offered no testimony whatever.
Held, that plaintiff has failed by COM
petent evidence to prove the allega-
tons necessary to sustain his action
and that the trial court should have
granted the motion made by defendant
at the close of plaintiffs testimony to
dtzyyoiss the action.
(SylIa'bus by the COURT
Appeal from district court, Mclean
county, Hon. w. II. Winchester Judge.
Civil action by Gilbert Holtan against
John A. Beck for the purpose of OBJ
tanning the remedy formerly obtain
able bv the writ of quo warranto in
trying the opposing claims OF plaintiff
ana defendant to the office OF sheriff
of Mclean county. A judgment was
entered declaring the plaintiff entitled
to the office and ousting defendant:
from which Judgment defendant APP
peaIs.
Judgment reversed and action dis
missed.
Hyland g. Nuessle. attorneys for APP
peIlant.
McCulloch q Gibson. (Eingerud, HoIi
& Frame of counsel). attorneys fol
respondent.
| Opinion Of the court by Ellsworth
j., all concurring.