State ex inf. Abernathy v. Tucker

Supreme Court of Missouri

State ex inf. Abernathy v. Tucker

79 S.W. 1195, 180 Mo. 205, 1904 Mo. LEXIS 58

DecidedMarch 1, 1904

StatusPublished

This text of 79 S.W. 1195 (State ex inf. Abernathy v. Tucker) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex inf. Abernathy v. Tucker, 79 S.W. 1195, 180 Mo. 205, 1904 Mo. LEXIS 58 (Mo. 1904).

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Opinion

BURGESS, J.

This is a proceeding in the nature of quo warrcmto begun in the circuit court of St. Francois county by J. A. Abernathy, prosecuting attorney of said county, at the relation of one J. D. Turner,- to oust from office of justice of the peace of St. Francois township, the defendant, Rufus 0. Tucker, upon the ground that he was appointed to the office of justice of the peace within and for said township by the county court of said county, without authority of law, and his appointment therefore illegal and void.

Defendant made return to the original writ issued in the cause, denying all allegations in the writ, and affirmatively alleging that he was duly -appointed to the office of justice of the peace of said township by the county court of said county. Relator replied denying all new matter set up in the reply.

At a trial before the court the issues were found for defendant, and it was adjudged that the liberties, privileges and franchises of the office and pertaining thereto of right belonged to him, and that he be discharged, with his cost.

[208]*208Relator appeals.

The only question in this appeal is one of fact, that is, whether or not the petitioners who- petitioned the county court of St. Francois county for the appointment of defendant lived more than five miles from the nearest justice of the peace in St. Francois township, where they resided on the 28th day of November, 1898, the day upon which defendant Tucker was appointed a justice of the peace hy the county court of said county for said township under the provisions of section 3806, Revised Statutes 1899.

The evidence upon this question was conflicting, but both the county court and also the circuit court upon appeal, found in favor of the respondent and there is nothing disclosed hy the record which leads us to a different conclusion. "We therefore affirm the judgment.

Gantt, P. J., concurs; Fox, J., not sitting.

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BURGESS, J.

This is a proceeding in the nature of quo warrcmto begun in the circuit court of St. Francois county by J. A. Abernathy, prosecuting attorney of said county, at the relation of one J. D. Turner,- to oust from office of justice of the peace of St. Francois township, the defendant, Rufus 0. Tucker, upon the ground that he was appointed to the office of justice of the peace within and for said township by the county court of said county, without authority of law, and his appointment therefore illegal and void.

Defendant made return to the original writ issued in the cause, denying all allegations in the writ, and affirmatively alleging that he was duly -appointed to the office of justice of the peace of said township by the county court of said county. Relator replied denying all new matter set up in the reply.

At a trial before the court the issues were found for defendant, and it was adjudged that the liberties, privileges and franchises of the office and pertaining thereto of right belonged to him, and that he be discharged, with his cost.

[208]*208Relator appeals.

The only question in this appeal is one of fact, that is, whether or not the petitioners who- petitioned the county court of St. Francois county for the appointment of defendant lived more than five miles from the nearest justice of the peace in St. Francois township, where they resided on the 28th day of November, 1898, the day upon which defendant Tucker was appointed a justice of the peace hy the county court of said county for said township under the provisions of section 3806, Revised Statutes 1899.

The evidence upon this question was conflicting, but both the county court and also the circuit court upon appeal, found in favor of the respondent and there is nothing disclosed hy the record which leads us to a different conclusion. "We therefore affirm the judgment.

Gantt, P. J., concurs; Fox, J., not sitting.

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Bluebook (online)

79 S.W. 1195, 180 Mo. 205, 1904 Mo. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-inf-abernathy-v-tucker-mo-1904.