Joseph McKenna

“ Plaintiff in error, however, goes back of the decision of the supreme court, and contends that he is not only an officer de facto, but an officer de jure. In other words, he asserts the correctness of the position taken in his answer, that, by the legislation creating Sandoval county, defendant in error ceased to be the assessor of Bernalillo, to which he was duly elected; that therefore a vacancy existed to which plaintiff in error was duly appointed. ”

“ Under these views it is not necessary to decide whether the judgment in the quo warranto proceedings is conclusive of the issues in this case, as contended by defendant in error. The decision upon the respective rights of the parties arising from the statute of the territory may be rested on the grounds which we have expressed, and we come to the proposition whether Sandoval can recover the fees and emoluments received by Albright, and whether, if he can, may the latter set off his expenses. ”

“ Upon the subsequent proceedings in the trial court, judgment was entered, declaring plaintiff in error not entitled to the office. The judgment also ordered him to deliver to the relator, defendant in error here, the records and the equipments of the office, 'as the lawful custodian thereof.' This part of the judgment was reversed by the supreme court; the other part, as to the title of plaintiff in error to the office, was affirmed. 13 N. M. 64, 79 Pac. 719, 11 A. & E. Ann. Cas. ”