People ex rel. Gesford v. Superior Court

This is an original petition filed in this court for a writ of mandamus to compel the respondents to render judgment in favor of petitioners as plaintiffs in a certain proceeding pending in the court of respondents, in which the petitioners here were plaintiffs and one M. R. Higgins defendant, in accordance with the prayer of the complaint in said proceeding.

The complaint in said case of the People v. Higgins, in which said Gesford was relator, contained two counts. In the first count it was charged substantially that the said Higgins had intruded himself upon the office of insurance commissioner, and that for certain reasons given in said complaint he had no title to said office. In the second count it was charged substantially that' said Higgins had accepted and was using a free pass, issued by a certain railroad company over the roads operated by it in this state, and that he had, therefore, forfeited the said office of insurance commissioner. In the prayer of the complaint judgment was asked that said Gesford be declared to be entitled to said office; that said Higgins was not entitled to but had forfeited the same; and that he, Higgins, be fined in the-sum of *470 five…

The attorney general commenced an action in the superior court in the name of the people of the state, on the relation of Henry C. Gesford, against M. R Higgins, alleging that he was unlawfully holding and exercising the office of insurance commissioner. In addition to the statement of the cause of action the complaint also set forth the facts showing the claim of Gesford to the office, and prayed judgment that the defendant be excluded from the office and Gesford be put in possession thereof. The cause of action was set forth in the complaint in two counts, and the defendant demurred to each of these counts, and also demurred to the complaint as a whole, upon the ground that several causes of action were improperly *474 united. The court sustained the demurrer to the first count without leave to amend, and also sustained the demurrer to the second count, but gave the plaintiff leave to amend the same. Under the leave thus given the plaintiff filed an amendment to this count, and thereupon the attorney for the defendant appeared in court and tendered the following oral plea: “The defendant pleads that he is not guilty of the offense charged,” upon which the following entry was…

I concur in the judgment denying the writ. The action of the clerk in entering a default after the court had accepted the oral plea of not guilty was entirely nugatory. The question whether the defendant was in default or not was a question for the court and not for the clerk to decide.

The court decided—erroneously it may be conceded— that the proceeding was criminal, and that an oral plea entered on the minutes was sufficient. The motion for judgment was, therefore, a motion for judgment on the pleadings, and—it may also be conceded—was erroneously decided, but I do not understand that mandate is the proper remedy in such a case. The proper course for the relator, if he was confident of his position, was to submit the case for decision and final judgment on the pleadings, and, if the judgment went against him, to appeal.