The commission of the Governor of the territory, issued on an appointment to any public office, which he is by law empowered to fill in case a vacancy exists, and reciting such va cancy, is prima facie evidence thereof, and courts will not go behind its recitals in a col lateral proceeding involving the title to such office.

2. INJUNCTION-TITLE TO OFFICE.

Where one is prima facie entitled to a public office by virtue of a commission by the Governor of the territory appointing him to such office, his right thereto can only be questioned by an action in the nature of quo warranto to test his title, and one not having the prima facie right to such office cannot maintain a suit to enjoin the appointee from exercising the duties of the office or from obtaining the paraphernalia, books, papers, etc.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Action by Frank A. Hubbell against Justo R. Armijo. Judgment for defendant, and plaintiff appeals. Affirmed.

William B. Childers, A. B. McMillen, and E. W. Dobson, for appellant. Neill B. Field and F. W. Clancy, for appellee.

PER CURIAM. This is a suit in equity brought by the appellant, Frank A. Hubbell, against the defendant, Justo R. Armijo. The complaint setting out in substance that the complainant is a citizen of the United States, residing in the county of Bernalillo and territory of New Mexico; that at the general election held in and for the said county of Bernalillo on the Tuesday next after the first Monday in November, 1904, he was a candidate for the office of treasurer and ex officio collector of said county; that he was duly elected to said office and received a certificate of election thereto, and that he duly qualified and had been acting and was still acting as such treasurer; that by virtue of said election and qualification he was entitled to serve as such treasurer

and collector for the term of two years commencing on the 1st day of January, 1905, and ending on the 1st day of January, 1907; that he is, and has been, in possession of all the paraphernalia of said office, including the tax rolls, etc., and was and is entitled to collect and receive the public taxes and all other moneys legally collectable by the treasurer of said county and to exercise the duties of his said office and receive the fees and emoluments therefor until the expiration of his term on the 1st day of January, 1905. as aforesaid; that he has never resigned said office as treasurer and ex officio collector of said county, that he is not dead and has never abandoned said office, and that no vacancy in said office has occurred or been created in any manner since he qualified and entered upon his duties as aforesaid. Complainant further sets out that certain charges of official misconduct were filed against him with the Governor of New Mexico, which charges he sets out in detail, and that the Governor of New Mexico, after notifying the complainant of a hearing to be had on said charges, proceeded to hear said charges and on the 31st day of August, 1905, that the said Governor made an order pretending and claiming to remove the plaintiff from said office of treasurer and collector of said county; that said Governor issued and signed a pretended commission under the great seal of the territory of New Mexico, pretending to appoint and commission the defendant, Justo R. Armijo, as treasurer and ex officio collector of said county of Bernalillo to fill the pretended vacancy claimed to have been caused by the attempted removal of the plaintiff from said office and a copy of said commission so issued by the Governor as aforesaid plaintiff files as an exhibit with his said complaint. Continuing, the plaintiff alleges that the Governor of New Mexico had no lawful power or authority to hear or determine the charges filed against him and had no power or authority to remove said plaintiff from office and that the action of the Governor in so doing did not create any vacancy in said office. He further alleges that the defendant, Armijo, by virtue of said pretended appointment and commission, has assumed and qualified for said office of treasurer and ex officio collector of said county of Bernalillo by taking the oath and giving the bond required by law and is attempting to usurp plaintiff's rights to said office of treasurer and ex officio collector, and has demanded possession of said office and the property belonging thereto, which said demand was refused by the plaintiff. Complainant further alleges that the said defendant threatens to take possession of the said office and that unless restrained by an order of the court will take forcible possession of the room occupied by plaintiff as the treasurer's office of said county, and the books, tax rolls and other paraphernalia of said office. He further alleges that al

though he, plaintiff, is in the possession of the office and in the active discharge of his duty, that the defendant has brought no suit by quo warranto or otherwise, to test the title of said office and that the rights of said plaintiff and defendant have never been judicially determined; but defendant threatens to seize the said office, books, papers, etc., by force. There are many other allegations in the complaint with reference to the power of the Governor to remove plaintiff, and the insolvency of the defendant, etc., which, in our view of this case, it is not material to set out here.

To this complaint the defendant answered, setting up his commission issued to him by the Governor of New Mexico, under the great seal of the Territory, which commission is in words and figures following, to wit: "Plaintiff's Exhibit D: In the Name and by Authority of the United States of America. Miguel A. Otero, Governor of the Territory of New Mexico, to All to Whom These Presents shall Come-Greeting: Whereas, a vacancy exists in the office of treasurer and ex officio collector of Bernalillo county, New Mexico: Know ye, that, reposing special trust and confidence in the prudence, integrity and ability of Justo R. Armijo, I do hereby appoint and commission him as treasurer and ex officio collector for Bernalillo county, New Mexico, for the territory of New Mexico. The said Justo R. Armijo is therefore carefully and diligently to discharge the duties of said office by doing and performing all manner of things thereunto belonging in compliance with law; this commission to continue in force during the term prescribed by law. In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the territory of New Mexico. Done at Santa Fé, this thirty-first day of August, in the year of our Lord one thousand nine hundred and five, and of the territory fifty-fifth, and of the independence of the United States the one hundred and thirtieth. Miguel A. Otero. [Seal.] By the Governor : J. W. Reynolds, Secretary of the Territory of New Mexico." Indorsed: "Filed in my office this September 27, 1905. W. E. Dame, Clerk"-and also setting up this qualification to said office as required by law. The answer set up numerous other matters which are immaterial here for the reason that the plaintiff filed a demurrer to said answer, which demurrer was overruled by the court as to the answer, but upon the theory that a demurrer searches the entire record the court carried the same back to the complaint and sustained the demurrer to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action. And the plaintiff electing to stand on the complaint, the court rendered a final judgment dismissing the cause with costs, to which judgment plaintiff excepts and appeals to this court.

The question before us, then, is whether or not the complaint as filed by the plaintiff, appellant herein, states facts sufficient to constitute a cause of action against the defendant. The complaint sets out a commission issued by the Governor of New Mexico, under the great seal of the territory, which upon its face recited that a vacancy existed in the office of treasurer and collector of Bernalillo county, and appointing thereto the defendant Justo R. Armijo. In the case of Eldodt v. Territory, 10 N. M. 141, 61 Pac. 105, this court said, speaking through Crumpacker, Judge: "Where one has received an appointment to a public office from the authority invested with power to make such an appointment, and has duly qualified in accordance with statutory requirements, the law will presume, in the first instance, that the appointment was legal, and that the appointee is the rightful incumbent of the office designated in the appointment"-citing Conklin v. Cunningham, 7 N. M. 445, 38 Pac. 170. It will be seen that the complaint in this case sets out the appointment and commission of the defendant and his qualifications thereunder. This, in our view, brings the case squarely within the rule laid down by this court in the case of Territory v. Eldodt, and Conklin v. Cunningham, supra. If the commission of the Governor is prima facie title to any office which the Governor is by law empowered to fill, in case a vacancy. exists, then it must appear that the appellant, Hubbell, under the allegations of his complaint, was not entitled to the relief sought, for the commission so reciting its prima facie evidence of such vacancy, and the court will not go behind its recitals in a collateral proceeding. If Armijo was the prima facie treasurer and collector of Bernalillo county, and his right thereto can only be questioned by an action in the nature of quo warranto to test his title, and such is undoubtedly the doctrine announced in the two cases cited, then it is inconceivable that one who has not the prima facie right to such office could maintain a suit in equity to enjoin him from exercising the duties of said office or from obtaining the paraphernalia, books, papers, etc., belonging to said office. Whatever we may think of the authority upon which the cases of Territory v. Eldodt and Conklin v. Cunningham, are grounded, it is nevertheless true that the principles of those cases have become the settled law of this territory under the decisions of this court, and we are loath to disturb them. While those cases may not be upheld by the weight of authority elsewhere, we believe that the doctrine of these decisions should be applied, and that greater harm would be done to the interests of the public in this territory by overruling them than by adhering to them.

Upon the authority announced in those two cases, the judgment of the lower court is affirmed, with costs; and it is so ordered.

13 N. M. 481)

VIGIL v. STROUP. (Supreme Court of New Mexico. March 2, 1906.)

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Bill by Eslavio Vigil against Andrew B. Stroup. Judgment for defendant, and plaintiff appeals. Affirmed.

W. B. Childers, A. H. McMille, and E. W. Dobson, for appellant. Neill B. Field, for appellee.

PER CURIAM. For the reason stated in Frank A. Hubbell v. Justo Armijo (decided at this term) 85 Pac. 1046, the judgment of the lower court will be affirmed; and it is so ordered.

(14 Wyo. 455)

BIG HORN LUMBER CO. v. DAVIS et al. (Supreme Court of Wyoming. June 12, 1906.) 1. MECHANICS' LIENS-PROCEEDINGS TO ENFORCE-PLEADING ESTOPPEL.

In a suit to foreclose a mechanic's lien, an answer alleging that defendant demanded of plaintiff a statement of the amount due for materials, and was furnished a partial statement, but not alleging that defendant was thereby misled to her injury, did not present any issue as to whether plaintiff was estopped to claim the full amount due him.

2. SAME-FINDINGS-SUFFICIENCY OF NOTICE OF CLAIM OF LIEN.

A finding that a notice claimed a lien "against the said frame house and the land upon which the said house stood" implied that the house and land were properly identified in the notice.

3. WRIT OF ERROR-DISPOSITION OF CAUSEREVERSAL-RENDERING JUDGMENT.

Where, on petition in error in proceedings to enforce a mechanic's lien, the errors assigned are that the findings of fact and law are insufficient to support the conclusions of law and judgment, and that the facts found entitle the plaintiff in error to judgment, on reversal, the findings covering all the issues, the appellate court will render judgment, and not remand the cause for a new trial.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4581.]

On petition for rehearing. Denied. For former opinion, see 84 Pac. 900. Burgess & Kutcher, for plaintiff in error. W. E. Mullen and S. P. Cadle (W. S. Metz of counsel), for defendants in error.

On Rehearing.

POTTER, C. J. In the former opinion in this case (84 Pac. 900), we stated that it was not contended that the inclusion of the November items of plaintiff's account in a partial statement rendered to the defendant Sanders and which was paid by her as set forth in the opinion estopped the plaintiff fron claiming a lien for the amount actually due upon the account against the contractor, Davis. And it was further stated that it was not contended that an estoppel resulted from the delivery to Mrs. Sanders by the contract

or of his receipted bill which had been obtained in exchange for his check which had no value and was never paid, but payment of which upon its prompt presentation had been refused by the bank upon whom it was drawn. It is now insisted on a petition for rehearing by counsel for Mrs. Sanders that the question of estoppel was in the case, and that counsel did not intend to waive it. But the argument upon that subject is based almost entirely upon counsel's understanding of the evidence. They say that on the trial both parties introduced evidence, without objection, bearing directly upon the question of estoppel, apparently forgetting that no part of the evidence is in the record before this court. We have only the pleadings, findings and judgment as the basis for our consideration of the case, and, as pointed out in the former opinion, the pleadings and findings do not establish an estoppel against the plaintiff. The answer of Mrs. Sanders alleged that on January 19, 1905, she demanded of plaintiff a statement of the balance due on account of materials used in her house, and was thereupon furnished with a statement of the November items (which had not been included in the receipted bill to Davis) and one other item, which she then paid. But it does not appear either by allegation of the answer, or in the findings, that she was misled in consequence of such partial statement to her injury, or that she was misled at all as to the actual facts and condition of the account. On the contrary, it appears from the findings that six days prior thereto Mrs. Sanders had been notified that there was $368.40 due the plaintiff from the contractor Davis for materials used in her house, for which the plaintiff claimed a lien on her property; and it is alleged in plaintiff's reply that promptly on the dishonor of the Davis check, the plaintiff informed Mrs. Sanders of such dishonor, and that they would look to her property for payment of the Davis account. It will hardly be contended that the circumstances of the check and receipted bill amounted to a payment of the account in fact; and as there is neither allegation nor finding that Mrs. Sanders was misled by reason of the receipted bill, as well as no allegation or finding that she paid anything to the contractor in consequence thereof, or at all, and absolutely nothing in this record to show or even indicate that she lost any remedy, or suffered any injury, by reason of any of the facts set out in the answer, or embraced in the findings, in connection with either receipted bill, there is no ground upon which to hold the plaintiff estopped from claiming or enforcing its lien. The answer did not, in our opinion, state sufficient facts to constitute an estoppel; and if it be conceded that it was unnecessary to plead it, and that the facts might have been shown which would amount to an estoppel under the issues as framed by the pleadings, the record fails to disclose any such showing; and in the absence of the evi

dence, or of any finding of facts sufficient to constitute an estoppel on account of the circumstances above mentioned, we are not at liberty to assume that estoppel was proven, or that the court failed to pass upon the evidence in that respect. We cannot agree

with counsel for defendant in error that the lien notice as shown by the findings was insufficient to support the lien. The findings in that respect are quoted in the former opinion, and, in our opinion, show a sufficient notice. The court found that the notice claimed a lien "against the said frame house and the land upon which the said house stood," which finding implies that the house and land were properly identified in the notice.

We perceive no reason for receding from our view that the findings clearly show that the November items were charged to the contractor upon his running account for materials furnished for the Sanders house, and that they were sold and delivered to the contractor for that purpose. There is nothing in the pleadings properly construed admitting a different state of facts, nor do we think that the findings insufficiently cover the issues tendered by the pleadings. We conceive it to be unnecessary to attempt to draw an inference from the pleadings as to the reason for Mrs. Sanders' payment of the November items and one other included in the statement furnished her January 19, 1905. We do not intend to attribute any improper motive to her in that respect, nor do we understand that there is any ground for so doing. It is left unexplained on the record here. It may be possible that at the time she believed it competent for her to rely upon the receipted bill for all the other items, and that she might be obliged to pay the items not included therein; or she might have understood that she alone was responsible for the unincluded items, but the court, however, found differently as to that matter.

It is suggested that instead of directing a judgment upon the findings of fact in accordance with our views of the law, the case should be remanded for new trial. If the record authorized such a course we would be willing enough to adopt the suggestion. But it does not. Counsel are mistaken in the assumption that plaintiff in error has asked merely for the reversal of the order overruling its motion for new trial. The petition in error prays for a reversal and vacation of the judgment as between the plaintiff and the defendant Sanders, and for judgment in its favor against Mrs. Sanders. The overruling of a motion for new trial is not assigned as error, nor is such a motion mentioned in the petition in error. The errors assigned are that the findings of fact are wholly insufficient to support the judgment in favor of defendant Sanders; that they do not support or warrant the conclusions of law numbered 1 and 2; that said conclusions of law are erroneous as based upon the facts found; that the judgment in favor of defendant San

ders is not supported by the conclusions of law; that such judgment is contrary to law, as based upon the findings of fact; and that the facts found entitle the plaintiff to judgment against said defendant. We are not permitted upon the record to question the findings of fact; they seem to us to cover the issues presented by the pleadings, and no ground therefore is perceived for remauding the cause for a new trial.

Rehearing will be denied.

BEARD and SCOTT, JJ., concur.

(14 Wyo. 540)

LEWIS v. ENGLAND. (Supreme Court of Wyoming. June 12, 1906.) COSTS-WRIT OF ERROR-TRANSCRIPT OF EVI

DENCE.

Under Rev. St. 1899, § 4266, providing that when a judgment is reversed the plaintiff in error shall recover his costs, and that there shall be taxed as part of the costs the cost of making the transcript of evidence in the case, where the evidence in an action was taken before a special master commissioner, and he transcribed all the evidence, and costs were taxed therefor in the court below, and no further transcript was made, the plaintiff in error is not entitled to costs for the making of the transcript.

On motion to retax costs. Denied.
For former opinion, see 82 Pac. 869.

POTTER, C. J. The judgment of the district court in this cause was reversed on error, and remanded for new trial. 82 Pac. 869. Counsel for plaintiff in error has filed a motion for the retaxation of costs in this court, by which it is sought to have taxed as costs, in favor of the plaintiff in error, the cost of making a transcript of the evidence in the case, pursuant to the provisions of section 4266, Revised Statutes of 1899. That section provides that when a judgment or final order is reversed the plaintiff in error shall recover his costs, and that there shall be taxed as a part of such costs the cost of making the transcript of the evidence in the case, which is to be computed at the rate allowed by law for making such transcript.

Our attention is called to the fact, which was disclosed by the record, that the evidence in the case had been taken before a special master commissioner, to whom the cause had been referred for that purpose, and it is shown by the affidavit of counsel for defendant in error, which is not controverted, that the commissioner took and transcribed all the evidence, and that the cost thereof was paid to such commissioner by the parties by order of the court below, and the same was taxed as costs in the case in that court. And it does not seem to be disputed that such evidence was transcribed and returned to the court below before hearing and judgment, and that at the time of judgment the transcription of the evidence was among the papers filed in the case as a part of the commissioner's report. The cause was heard and determined