| Show DISTRICT SCHOOL REPORTS THE DEMAND FOR COUNTY REP REPORTS ORTS BY P L WILLIAMS DEMURRER BY THE DEFENDANT in the matter of P L williams vs wm win M stewart siewart order to require the latter to report to the former as terri tonal superintendent of district schools in the third district court UJ uri oda o da dat le grand younk Youn js for the def defendant enfant interposed a demurrer to the order of the ground that the facts stated in the affidavit of the plaintiff were not sufficient to constitute a cause of action mr young argued that the plaintiff could not as he was trying to downstate do instate him self in office by writ of mandamus inan damus if as he claimed I 1 L john nuttall had usurped the office the plaintiff had no right to make that a collateral IF issue sue instead of proceeding against mr nuttall because the lattur latter was absent was no ground of act ionas the statute provi provided cled for service of process by advertisement if he was a usurper ne could be ousted by civil process which afforded i ibe be plaintiff an adequate remedy for the condition which he alleged ei existed isted if mr nuttall could not be found the law provided a me ansito make service of summons in such suche event yent the order of the court showed no reason why service could not tee made section laws of 1884 provided where the person on whom the service is to be made resides out of the territory or has departed from the territory or cannot after due diligence be found within the territory beuce or conceals himself to avoid the service of summons or being a corporation or joint stock association cannot be served as provided in the preceding section and the fact shall appear oy by affidavit to the satisfaction ot of the court or judge thereof and it also appears by such affidavit or by the verified co corn plaint on file that a cause of action exists against the defendant in respect to whom the service is to be made or that he be is a necessary or proper party to th the e action such court or judge may grant an order nat the service erv I 1 e be made by the publication ot of the summons this gave the plaintiff all the opportunity that was proper to serve mr nuttall with any notice and proceedings by mandamus were improper the office of territorial superintendent was in dispute and the plaintiff was not entitled to mandate but should proceed as the law directed if he had no other specific remedy and the office was not in dispute the present proceedings might be proper but as neither of the conditions named existed they were not mr young cited authorities in su support of his bis position asi and contended that the plaintiff plaintiff should not be allowed to I 1 legislate e isgate himself into the office it of territorial superintendent of district schools by a collateral proceeding he had allowed several months to pass without doing anything relative to the duties of the office not even having conformed to the provision requiring him to furnish f the county superintendents with forms for reports the plaintiff had not complied to the law and should be required to do so before he applied to the court for an order of mandate to com compel ea others to accede to his we demand no specific demand in the legal way had been made on mr stewart for the reports wanted the plaintiff further had no right to install himself in office as against L john nuttall by a proceeding in mandamus a against adust wm win M stewart and there was no other object sought in this action when the office was filled by byan an officer who was qualified and s worn sworn a writ of mandate could not be taken a advantage of to settle the dispute P L williams replied to mr young whose argument he characterized as rant and balderdash he was still speaking when we went to press A decision will probably not be given until monday |
