Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1915-05-21

Motion TO Dismiss Appeal of
Mayor 'Boatright in CeIe-
brated Case Not Sustained
Merits please Not Affected,

According to information received
from santa Fe. the supreme court
yesterday cverruled motion made
by chief Thomas McMilln. through
his attorney Judge II. A. Mann. to
dismiss the appeal of Mayor Bout
right In the celebrated case arising
over the attempt made by the mayor,
shortly after his inauguration. to put
George II. Thomas In the office Of
city marshal.
This action does not in any man
ner affect the merits of the case,
upon which the court is yet to pass,
The effect of the decision is that, re-
gardless of the withdrawal from the
litigation Of Mr.. Thomas. the mayor
still has the right to appeal from the
decision of the district court sus-
tanning the original complaint as
against him.
syllabus of the Court.
The opinion Of the supreme court
was rendered by Justice Hanna, the
syllabus being as follows
Il. IT Is essential that a person who
seeks to prosecute an appeal should
show that he is interested in the
subject matter Of the controversy, and
that his right will be materially af-
ltcteu ON tue judgment.
"2. Where one is made a party
defendant to an action who Is neither
a necessary nor proper party there |
TO-. the plaintiff can not he heard tol
object to his right to assail the COM |
plant or petition by assignment OF
error on appeal
Statement of Facts.
The facts of the case are recited by |
4 h.. .tf In he fn1l Lou
This is an action by an appellee
to restrain the appellant from fore
IDLY or otherwise taking possession of
the Office of city marshal Of the city |
of Albuquerque A temporary injunc- |
ton was issued restraining the said
d. IT. Boatrlght, mayor of the said
city and the said George Thomas,
their agents. servants etc, from en-
deavoring to take possession of the
office anu from performing or at
TO perform lie duties OF said
office or from interfering with the
conduct of the same, and that the in
junction be made permanent upon
final hearing, \ motion to quash the
Injunction vas made by
defendants and overruled. and sub
sequent demurrer to the amended I,
complaint was likewise oVerruled.
defendants answered de-
nying, among other things, that they
or either OF them had used or threat
ened to use any force or inrcihle
methods AGAINST the said MeMillin,
or to place the defendant Thomas In
possession Of his office as city mar
shall, bht admitted that the defend
ant Thomas, had demanded said Of
flee of the said incumbent McMilltn !,
and claimed title thereto. and fur-
Their alleging that the term of Of
flee of the incumbent MeMilhn had
expired and that the defendant
Thomas had been regularly appointed
by nomination Of the mayor, which
had been duly acted upon By the
who had qualified as such
officer and was therefore entitled 10
as such officer TO the pos
session of the office to which answer
a demurrer was interposed by the
plaintiff on the ground that the
answer did not state facts sufficient
to constitute a defense to plaintiffs
which being sustained the
defendant declined to plead further
a temporary injunction
was made permanent and defendants
prayed and We're granted this appeal
from said judgment, which was duly ,
but while pending in this
court the appellant Thomas, has filed
/ motion to dismiss his appeal with
aosts against the appellant and sets
10 that after due consideration he has
no desire to prosecute said appeal ,
rhereupon the appellee McMillin
moved the court to dismiss the ap-
real because it appears that one of !
he appellants. Thomas, has moved .
o dismiss, and because It further APP !.
pears from the record that the con-
royersy involved was between Me- II
diliin. appellee, and the said Thomas,
md that there is no controversy |
which can be settled by this appeal
is between the said Boaright and
he appellee dcMillin. the controver-
~ being over the possession of the
,ffiee of marshal of the city of Albu-
tuerque, and II appearing from the
-ecord in this case that the posses
ion of said office was not claimed BY
aid appellant Boatright'