Updegraff v. Crans

The opinion of the court was delivered, by

Thompson, J.

The complainant below mistook the remedy for testing the rights of the several persons claiming to be borough officers, under the appointment of the borough council, on the 15th of June last. Quo warranto is the specific statutory remedy for such a case. But it is alleged that the appointees had not entered upon, or exercised, or attempted to exercise, the duties of their offices when the bill was filed. If that be so, it only *106 shows that the plaintiff moved too soon. He should have waited, and if they never entered or usurped the exercise of authority under their appointments, no harm would have been done; but if they did, that moment the law would afford an ample remedy by quo warranto for trying their right. This specific remedy at law, ousts the equitable jurisdiction of the case. There should, therefore, have been judgment on the demurrer for the defendants, and the bill dismissed.

The decree of the Common Pleas is now reversed, and the bill of complaint is dismissed at the costs of the appellee, including the costs of the appeal.

Woodward, C. J., was absent at Nisi Prius when this case was argued.