Herken v. Glynn

• Decision Date: 04 May 1940
• Docket Number: 34666.
• Citation: 101 P.2d 946,151 Kan. 855
• Parties: HERKEN v. GLYNN.
• Court: Kansas Supreme Court

101 P.2d 946

151 Kan. 855

HERKEN v. GLYNN.

No. 34666.

Supreme Court of Kansas

May 4, 1940

Syllabus by the Court.

An appeal from a judgment of an election contest court to the district court is governed by the provisions of the statute providing that appeals to courts other than the Supreme Court shall be taken and proceedings therein had in the same manner as provided for appeals to the Supreme Court, except where special provision with reference to such appeals is made by statute. Gen.St.1935, 60-3308.

The district court did not deny motion to dismiss appeal from a judgment of an election contest court for appellant's failure to make a deposit for costs, where motion was filed and ruled on before 30 days from the time that notice of appeal and transcript of the proceedings of the contest court were filed in the office of the clerk of the district court and motion was not renewed nor called to district court's attention after 30-day period. Gen.St.1935, 60-3308.

On appeal from a judgment of election contest court to the district court, the fact that appellant did not make a cash deposit for costs within 30 days was not fatal to the district court's jurisdiction. Gen.St.1935, 60-3308.

Where jurisdiction of territory is ceded by a state to the United States, municipal laws of a state, except in so far as they are inconsistent with the laws of the United States, remain in force until abrogated by the United States, but this includes only such laws as are in effect at the time of the cession.

Residents on the realty in Leavenworth county, Kansas, whereon the National Home for Disabled Volunteer Soldiers was established by the United States after the state ceded the realty to the United States, had no right to vote at election precincts established on the realty prior to the cession; the right to vote not being a "municipal right" so as to persist after cession. Gen.St.1935, 27-101 to 27-102a, 60-3308; Const.Kan. art. 5, §§ 1, 3; U.S.C.A.Const. art. 1, § 8, cl 17; and Amend. 14.

1. An appeal from a judgment of an election contest court to the district court is governed by the provisions of G.S.1935 60-3308.

2. It is not error for the district court to deny a motion to dismiss such an appeal for claimed failure of the appellant to make a deposit for costs, where it appears the motion was filed and was ruled on by the court within thirty days from the time the notice of appeal and the transcript of the proceedings of the contest court were filed in the office of the clerk of the district court.

3. By reason of the provisions of Laws 1927, chap. 206 of this state (G.S.1935, 27-101, 27-102 and 27-102a), whereby this state consents to the acquisition of any lands within this state by the United States for the purposes mentioned in Art I, sec. 8, par. 17 of the Constitution of the United States, and cedes to the United States exclusive jurisdiction over and within any lands so acquired by the United States, except as mentioned in that act, and by reason of the United States having acquired title thereto, persons resident on the real estate in Leavenworth County, Kansas, whereon The National Home for Disabled Volunteer Soldiers was established, have not retained and may not acquire the right to vote at election precincts established on that real estate prior to the above cession.

Appeal from District Court, Leavenworth County; J. H. Wendorff, Judge.

Action to contest an election for County Treasurer of Leavenworth County, by Bernard A. Herken against John T. Glynn. The contest court gave judgment to the defendant, and the plaintiff appealed to the district court. The defendant moved to dismiss the appeal, and from a judgment denying the motion, the defendant appeals.

Judgment affirmed.

HARVEY, SMITH, and WEDELL, JJ., dissenting.

Benjamin F. Endres, of Leavenworth, for appellant.

Max L. Frederick, of Leavenworth, and E. R. Sloan, W. Glenn Hamilton, Floyd A. Sloan, and Eldon R. Sloan, all of Topeka, for appellee.

THIELE Justice.

This was an action to contest an election for county treasurer of Leavenworth county. Within the limits of Delaware township in that county is a tract of land of over 642 acres on which is located a national home for disabled soldiers, the exact name of which is not important, and which generally will be referred to as the soldiers home. By action which will be referred to later, three voting precincts were established at the soldiers home, and the principal question here involved is the right of the persons residing at the home to vote as electors of Leavenworth county.

At the election November 8, 1938, votes were cast and received at the above three precincts, as well as at other precincts in the county. Thereafter the board of county commissioners, as the canvassing board, performed its duties and declared that Herken had received a total of 7,211 votes and Glynn had received a total of 7,283 votes, and Glynn was declared elected by a majority of 72 votes. Herken instituted a contest under proceedings of which no complaint is made, the burden of his complaint being that in the three precincts at the soldiers home and subsequently counted by the canvassing board were 496 votes cast for Herken and 581 votes cast for Glynn; that the voters at those precincts were not qualified electors of Delaware township and their purported votes should not be counted, and if not counted he would be the legally elected county treasurer. On December 28, 1938, the contest court gave judgment for Glynn and on January 5, 1939, Herken served his notice of appeal and filed the same with the county clerk. On June 6, 1939, a transcript of the contest court proceedings was filed in the district court and on the same day a bond was given by Herken to pay the costs if the same be adjudged against him. On June 21, 1939, the contestee filed his motion to dismiss the appeal for the reason the contestor failed to perfect his appeal as required by law and the court was without jurisdiction. On the same day the motion was presented to the court and evidence was taken that no deposit for costs had been made and that the bond had been given. The district court denied this motion and that ruling is assigned as error.

If there was error, it disposes of this appeal, so we will consider it before going to the merits.

There is no specific provision of statute for appeals from the judgment of a contest court under the circumstances here obtaining. In Berglund v. Hanna, 149 Kan. 500, 504, 87 P.2d 581, it was held that a contest court is a tribunal exercising judicial functions and inferior in jurisdiction to the district court. In G.S.1935, 60-3308, it is provided that: "Appeals to courts other than the supreme court shall be taken and proceedings therein had in the same manner as is herein provided for appeals to the supreme court, except where special provision with reference to such appeals is made by statute." And in G.S.1935, 60-3825 that: "The judges of the supreme court may make and amend, from time to time, such further rules for the regulation of procedure in the supreme court and inferior courts consistent with this code, as they may deem proper." Acting under authority of the last quoted section, this court has promulgated its rule No. 2 which provides that when the clerk of a trial court shall transmit a certified copy of the notice of appeal and accompanying papers to the clerk of this court, the cause shall be docketed at once, but an order of dismissal shall be entered by the clerk unless deposit of $25 advance fee be made within thirty days, etc.

Appellant directs our attention to Pee v. Witt, 100 Kan. 171, 163 P. 797, where it was held a cash deposit is not a substitute for a bond; to Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P.2d 585, where it was held the bond was legally insufficient, and to other similar cases, and insists that because no cash deposit was made the district court acquired no jurisdiction. In those cases the giving of a legally sufficient bond at the time of appeal was necessary in order to perfect the appeal. In the case at bar, applying the analogy of the rule of this court for appeals from the district court to this court, the appeal was perfected when the notice was given and the record was certified to the district court, and Herken had thirty days in which to deposit the advance fee for costs. By reference to the dates above shown, it will be seen that before that time had expired, Glynn had filed his motion to dismiss and it had been denied. We are not advised what reason, if any, was assigned for its ruling by the district judge but it is clear the motion was prematurely filed, and the ruling was correct for that reason if for no other. Thereafter the motion was not renewed nor was the district court's attention again directed to the matter, nor did the clerk dismiss the action, but the action proceeded and was ultimately heard and determined. Under the facts we cannot say the district court was without jurisdiction, nor will we say failure to make a cash deposit within the thirty-day period was fatal. We need not consider the power of the district court to waive strict compliance with the rule as to a costs deposit, for that is not discussed. It is well known, however, that on occasions where poverty and present inability to comply are involved, the requirement of the rule is frequently waived in this court. As bearing on the question see Obertino v. Fidelity Coal Mining Co., 87 Kan. 297, 124 P. 172, Ann.Cas.1913D, 573.

At the trial in the district court, Herken offered in evidence the deeds showing conveyance of the real estate on which the soldiers home is situated, and the records showing canvass of the election returns, etc. Glynn's demurrer to this evidence was...