Hull v. Superior Court

McKee, J. This is a proceeding by certiorari to review a proceeding had in the Superior Court of Shasta County. It appears by the record returned in the proceeding that on the 8th day of January, 1883, W. E. Hopping, claiming to be the sheriff and tax collector of the county of Shasta, and the incumbent in office, commenced the proceeding by filing a petition against Sylvester Hull and Robert Kennedy to compel them to deliver to him the books and papers belonging to the office in their possession, which it was alleged they had refused to deliver to him on demand. Hull and Kennedy appeared in the pro[175]ceeding; one of them, answered the petition, the other did not. Neither denied any of its allegations. The answer of Hull merely averred that the petitioner had not qualified.

But the petition alleged, and the court found that the petitioner was on the 8th of January, 1883, and ever since had been the duly elected and qualified sheriff and tax collector of the county, and the incumbent in office, and as such was entitled to the books and papers of the office in the defendant’s possession. It therefore ordered such books and papers to be delivered to the petitioner, and enforced the order by an order for a warrant, directed to a constable of the county, commanding him to make search for, and to take and deliver such books and papers to the petitioner. These orders are now claimed to have been made without, or in excess of, the jurisdiction of the court.

But upon the filing of the petition, the court was authorized by sections 1015 and 1016 of the Political Code to proceed in a summary way after notice of the petition to the adverse parties, and to make the order applied for, and to enforce it by attachment or warrant. By these sections of the Code the court had jurisdiction of the subject-matter of the petition; and as it acquired jurisdiction of the persons of the defendants, it had jurisdiction to make the orders which were made and entered in the proceeding.

The real contention, however, is that the court exceeded its jurisdiction in making the orders, because the petitioner had not alleged in his petition that he was the “ actual incumbent ” of the office. The allegation is: “ That on the 8th of January, 1883, he was, and ever since has been, and he now is, the duly elected and qualified sheriff and ex officio tax collector of Shasta County, State of California, and at said times he was, and he now is, the incumbent of the said offices.” It was also alleged, “ that he was formerly, to wit, immediately prior to said 8th day of January, 1883, an incumbent of said offices, and the said Robert Kennedy was, immediately prior to said last named date, under-sheriff and deputy tax collector of said county.” These allegations were admitted, and from them, as facts, the inference is fairly deducible that the petitioner Hopping was the complete incumbent, and Hull had been the former incumbent of the office.