State ex rel. Curry v. Wright , 52 Tenn. 612 ( 1871 )

FreemaN, J.,

delivered the opinion of the Court.

A motion is made in this case to dismiss appeal of Wright for want of proper appeal bond.

The bond given is, as required by Chancellor, for payment of costs, in the sum of $250.

It is insisted this Court should require a bond also to cover damages, as Curry may suffer by reason of being kept out of the office, to which he is declared entitled by the decree below.

"We can see no grounds on which we can require such bond, or hold that the appeal shall be dismissed for want of it.

By sec. 3420 of the Code, under which the proceeding in this case was had in Court below, it is provided, “if judgment is rendered in favor of such claimant, the Court may order the defendant to deliver to him all books and papers belonging to the office,” etc.

By next section it is provided that the claimant, in this Court, may also at any time within one year thereafter bring suit against the defendant, and recover the damages he has sustained by reason of the act of defendant. It is also provided in sec. 3424, when party is adjudged guilty of usurping, unlawfully holding or exercising any office or franchise, judgment shall be rendered that such defendant be excluded from the office or franchise, and that he pay the costs.

These provisions are specific and clear that the matter in contest to be decided is the usurpation of the office or franchise; and the judgment, exclusion from that office or franchise; and the money judgment to be given is for costs, and the damages, if any have accrued, are provided for in another suit to be brought within a year after the judgment.

The provision “that the suit will be conducted as other suits in equity,” only means that it shall be conducted as such a suit, to the attainment of the results above indicated, but can not be held to include an inquiry into the damages sustained. If this had been the purpose of the Legislature, it would have been easy to have said so, and the provision for a suit within a year after judgment would have been entirely unnecessary and superfluous.

The applicaton will be refused.