holding that where the time for appeal has not yet expired, it is proper for this court to disregard the method by which the cause was presented to this court and to treat the case as an appeal from the judgment of the lower court
How later courts described this case
- holding that where the time for appeal has not yet expired, it is proper for this court to disregard the method by which the cause was presented to this court and to treat the case as an appeal from the judgment of the lower court
Written by the judges who cited it.
The opinion
Humphreys, J.,
(dissenting). It is immaterial whether the Chancery court had jurisdiction to order the commissioners to vote for or against the recall. The effect of the order was the same. The commissioners were advised by the learned city attorney that, unless they carried out the order of the chancery court, they would subject themselves to proceedings in contempt. The commissioners then complied with the order, which cannot be regarded as a voluntary act on their part. When the appeal to this court and the proceedings before the chancery court were dismissed, the restraint upon the commissioners was removed, and not until then. Their former action under duress was wiped out by the dismissal of the case in the chancery court. The commissioners were then free to examine the petitions for recall and to act upon them in the fair, impartial manner contemplated by the law, and should have proceeded to do so. Instead, they indefinitely postponed the action upon the petition, without investigation and consideration. The refusal, therefore, of Miller and Ward to investigate the sufficiency and legality of the petitions,' after all restraints were removed, upon motion of Parker, was arbitrary, and subject to correction: by proceedings in mandamus. For these reasons I dissent from the conclusion reached by my associates.