The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1923-11-01

district atterneyship Of Kenosha county
came in rapid sequence today, when,
at the opening of the fall term OF the
criminal branch of the circuit court,
Judge b B. Belden held that Frank
Symmonds should continue to hold Of
fee until official aotifcatien is re-
ceived of the reversal of the lower
court by the supreme tribunal.
Earlier in the day Mr.. Symmonds
had announced his intention to fling
a motion for a rehearing of the case
before the supreme court Under the
law he has until November Is to put
this motion in, before the time limit
is up and the official remititture is sent
here from Madison. He will prepare
his case as soon as the dissenting
opinion, which is being prepared by
Justice Burr w, Jones, is received.
The attempt to GUST Mr. Symmonds
from the district attorneyship came
dramatically. Charles Rogers, charged
with manslaughter, stepped up to be
arraigned. Mr.. Symmonds read the
charge, and the court asked for plea.
1t was then that Calvin Stewart, of
the law firm of Stewart and Vaudreuil,
defense attorneys, and also attorneys
for Morris Barnett, came forward and
announced that he had plea in abate-
ment which he wished to enter before
the trial proceeded.
"Symmonds Not Prosecutor
"The complaint against the defen-
dent is not signed by the district at
torney of this county as provided by
law Attorney Stewart announced
He then presented the court with
certified copy of the proceedings of
the supreme court.
Under sect 46;49 Wisconsin re-
vised statutes, the law provides that
the district attorney of the county
where the crime is committed is the
only person authorized to sign a com
plant" Mr.. Stewart continued. when
the supreme court reverses the lower
s court, (Which in this instance hap
pened to be Judge Belden), the deci-
sion Of the lower court is a1tomatical-
ly voided, and the conditions become
what they were before Mr.. Barnett
turned over the office to Mr.. Sym
monds."
Judge Beldeni-in reply, stated that
the remititture which is the official
notification of the decision of the su-
preme body, had not been received by
him and that he had no official knowl-
edge of their action in the case. :
Attorney Stewart contended that the
certified copy of the proceedings was
sufficiently official to serve in this
case ut is Mr.. Symmonds' duty, as
/ would advise my client under
similar circumstances, to step down
and OUT he said.
County Without PrOsecutor?"
"The losing party has a time limit
under the law in which to move for a
rehearing on this matter, and until
that time limit is up, l have no right
to consider these papers as official mo-
tifcation," the judge said. would
you leave this county without a
prosecutor until the official papers
are receiyed?H
"0h no." Attorney Stewart count
cred Il believe under the law and
in view of the existing conditions this
ceurt has the right to appoint any at
torney as the district attorney of the
county for the time being. This
would not hold up the trial of the
cases."
court will recognize Mr.. Symmonds as
the district attorney of the county,"
Judge Belden decided.
Stewards Brief.
The brief presented this morning
by Calvin Stewart in support of his
Claim that Frank Symmonds was GUST
ed from office by the{supreme court
decision, reads in part as follows:
When an order is entered in an
appellate court, reversing a judgment,
it is forthwith vacated, and no longer
remains in existence Cewdery VS..
Londen g. San Francisco bank 1912
Pas. 1876; SO A, S. R. 115 and note;
IRE vs.. Ure 21S Ill. Asa.
"a general reversal extends to each
part Of the judgment, whether or not
ii is expressly named in the order or
considered in the epinion; the rever-
sal cannot, unless the reviewing court
so directs, be limited in effect to the
part of the judgment which is found
Do be erroneous" 90 A. s. r. 1877 note.
when judgment has been re-
versed, with directions to the trial
court to enter judgment in accord
aRee with the views expressed by the
dppGllAbS COURT bHe f0FIleI CANNOT Dy
any new order or judgment, which it
may enter, make it relate back to, and
preserve validity in the original judg-
ment, which had been vacated by the
reversal" 2 r. G. L. 270 Section 222;
Empsen VS., Forum 172 Pac. 8T5.
TIE VOTE
Assuming that each of the parties
to this action received an equal num-
Der of votes, still BIZ. Barnett would
be entitled to the Office by virtue
of his certificate of election, for the
reasons;-
l. There can be no hold over after
a valid election.
?. The court has held this to be
valid election.
8. Either Barnett or symmonds is
entitled to hold the Office, by virtue
of the election.
4. symmonds has failed to prove
that he was elected.
>. Barnett holds the certificate of
election,
"In the absence of statute con-