People ex rel. Whiting v. Connor

13 Mich. 238, 1865 Mich. LEXIS 20

• Court: Michigan Supreme Court
• Decided: May 2, 1865
• Status: Published

Opinion

Christiancy J.:

In these several eases, over four days having elapsed since the default of the respective defendants was entered, the counsel for the relator claims final judgment as well in favor of the relator’s right to the respective offices as for the ouster of the defendant, the informations having set forth as well the right of the former, as the usurpation by the latter.

The statute — Rev. Stat., Chap 136, Sec. 4; Comp. L., Sec. 5294 — provides that “judgment shall be rendered upon the right of the defendant, and also upon the right of the party so entitled; or only upon the right of the defendant, as justice shall require.”

After careful consideration we have come to the conclusion that we cannot safely go, further upon default of the defendant than to give judgment of ouster against him. His default admits his own usurpation of, of intrusion into the office, but we do not see how his admission can be allowed to determine the right of the relator to tbe office. This is a question between the relator and the people, which cannot be safely left to' the admission of the defendant. From the fact that the defendant has no right to the office, it does not necessarily follow that the relator hag. The statute has furnished no means of trying the relator’s right upon default; and we have not been able to discover one fairly within the power of the Court, by which the question can be safely tried ex forte. Practically in these cases the judgment of ouster will probably accomplish the • object of the relators. The offices being vacated by the ouster, the relators will doubtless find no difficulty in taking possession. But if there be any defect in any relator’s title, the people will still be at liberty to test the question by the proper proceeding against, him.

Cooley and Campbell JJ. concurred. Martin Ch. J. was absent.