Sabin v. Sherman

28 Kan. 289

• Court: Supreme Court of Kansas
• Decided: July 15, 1882
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

After the decision in this court in Benton v. Nason, et al., 26 Kas. 658, and on the 21st day of March, 1882, the plaintiff filed his petition to perpetually enjoin the defendants, as commissioners of Pottawatomie county, from canvassing the votes polled at the election held in that county on September 23,1879, for the purpose of permanently locating the county seat of the county. It was alleged in the petition, that the order for the election was wrongfully and illegally made, because not petitioned for by the proper number of legal voters of the county; that the petition presented and acted upon contained the names of minors, dead persons, non-residents and forged signatures in numbers sufficient to reduce it below the requirements of the law. A temporary, injunction was granted upon the application of the plaintiffj by the probate judge of Pottawatomie county, upon the date of the filing of the petition, and at the March term of the district court for 1882 the defendants moved to dissolve the injunction thus granted; and upon the hearing of the motion the record and decision of affirmance in the case of Benton v. Nason, supra, were offered in evidence. The motion was sustained, and plaintiff now brings the case here.

It appears from the record that the case of Benton v. Nason, supra, was tried upon its merits, and the judgment therein rendered affirmed by this court. We perceive no error in the ruling of the district court. Although the plaintiff was not the same as in Benton v. Nason, yet it was the same interest which was plaintiff; and where one case involving the county-seat question has been heard upon the merits and decided, county commissioners ought not to be exposed to repeated suits from different parties. If this be not true, then it follows that it is within the power of those who may be dissatisfied with the result of a county-seat election, to defeat almost forever the canvass of the returns of the election, by the continued institution of new suits. Perhaps there might be some special and exceptional circumstances preventing the one decision determining all, but, as a -rule, one decision on the merits of .the case ought to conclude all parties with the same interest. See McMillen v. Butler, 15 Kas. 62. .Further than this, however, subdivision 3 of §18 of the code bars this action. The date fixed by law for the canvass of the votes cast at the election was September 27,1879, and in our opinion the cause of action accrued to the plaintiff the day fixed by law for the canvass. This action was not commenced for more thani two years after that date. If the county commissioners had voluntarily deferred any action, the rule might have been different, but their action was postponed through an injunction, and the time thereby for commencing this action was not extended. At any rate, if the rule here stated is not within the very letter of the statute, it is clearly within the spirit, and it is important that there should come a time in which litigation of this character shall end.

The order and judgment of the district court will be affirmed.

All the Justices concurring.