People ex rel. Wagenseil v. Stephenson

An information in the nature of a quo warranto was filed in the circuit court for the county of St. Clair, on relation of William F. Wagenseil, against the respondent. On the trial of the issue the relator was adjudged entitled to the office, and a judgment of ouster entered. The respondent thereupon sued out a writ of error to this Court, and by this motion asks to have the proceedings upon the judgment stayed.

Upon a judgment of amotion from office, the jiarty amoved is divested of all official authority, and excluded from office, so long as the judgment remains in force. High, Extr. Rem. § 756. And, when judgment is rendered in favor of a relator, he needs no writ to invest him with *219the office. Under section 8639, How. Stat., he is entitled to take upon himself the execution of the office. Can this right be defeated or suspended by suing out a writ of error and giving a bond to stay execution? The statute (sections 8679, 8681) provides for a stay of execution by suing out a writ of error, but does not authorize a suspension of a judgment which requires no aid from process to give it effect. The practical result of permitting such a writ to suspend the judgment in quo warranto cases would in many eases be to defeat the relator of his remedy wholly. Such a construction is not to be indulged, except it be imperatively required by the terms, which we think is not the case here. This precise question was determined by the Court in the October term of 1886, in the unreported case of Emmons v. Board of Supervisors. See, also, Welch v. Cook, 7 How. Pr. 282.

The motion will be denied.