Scott v. Sheehan
Before: Henshaw
Synopsis
Office of Tax-Collector—Forcible Possession—Officer De Facto— Injunction—Title not Involved.—Where an ineligible person elected to the office of tax-collector, and having the certificate of election, took forcible possession thereof from the incumbent holding over, who believed in good faith that he had the right to retain possession, and resisted such forcible possession, and the court found that the intruder was in possession of the office and was de facto tax-collector, when an action was commenced by him to enjoin the incumbent from interfering with him in the performance of his duties, the title to the office was not involved in such suit, and cannot be inquired into, and the defendant by resisting the intrusion and obeying the injunction, has lost none of his legal rights.
Id.—Finding Supported by Evidence.—Where it cannot be said that there was not sufficient evidence before the court to justify its finding that the plaintiff had entered upon the duties of his office, it was proper to enjoin the defendant from interfering with the plaintiff.
HENSHAW, J.
These appeals are from the judgment and from the order denying defendant’s motion for a new trial. The judgment enjoined the defendant from interfering with the position held by the respondent of the office of tax-collector of the city and county of San Francisco and awarding damages and costs of suit.
Sheehan was tax-collector of the city and county of San Francisco; Sco'tt was elected to succeed him. Sheehan in good faith believing that Scott was ineligible to fill the office, and that his election to fill the office was a nullity, and that he was entitled to hold the office until the election and qualification of a person eligible to hold the same, refused to surrender possession of the offices, books and records therein contained, and commenced an action against Scott to contest his election under subdivision 2 of section 1111 of the Code of Civil Procedure. The result of the judgment in that action was a declaration of the ineligibility of Scott, which judgment has been affirmed upon appeal to this court.
(Sheehan
v.
Scott, ante,
p. 684, filed January 4, 1905.) Pending the determination of that action, however, Sheehan being advised that Scott proposed to take summary possession of the offices, barricaded the doors and entrances so as to protect himself in the possession, and it is found that all of the preparations which he made were reasonable and necessary according to his information, to enable him to maintain the possession of the office, and made upon his part solely by reason and on account of the threats and preparations made by plaintiff; that at noon, upon January 8, 1900, the day and hour when the newly elected officer was to enter upon the discharge of his duties, Scott made demand upon Sheehan to surrender possession, and, upon his refusal so to do, Mr. Scott’s legal adviser told him to take possession. The result is summed up in the finding of the court as follows: “That thereupon a number of persons in confederation with plaintiff, Joseph IT. Scott, acting under the orders of said Scott, and the said Scott himself, jumped over the counters and chairs in the tax-collector’s office and struck, beat, bruised, and maimed a number of men in the occupation of said office, by the leave and upon the direction of the defendant Edward I. Sheehan, and undertook
[693]
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