Hudson v. Manning
| Decision Date | 20 October 1933 |
| Citation | 250 Ky. 760,63 S.W.2d 943 |
| Parties | HUDSON v. MANNING. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County.
Election contest by T. J. Hudson against John Manning and others, in which defendant named filed a counterclaim. From a judgment dismissing the petition, contestant appeals.
Affirmed.
B. B Snyder and C. B. Upton, both of Williamsburg, and R. L. Pope of Knoxville, Tenn., for appellant.
H. H Owens, of Barbourville, and E. L. Stephens and Stephens & Steely, all of Williamsburg, for appellee.
The appellant, T. J. Hudson, was one of seventeen candidates for the Republican nomination for jailer of Whitley county in the primary election held August 5, 1933. When the votes were tabulated, it was found that four of the candidates had received more votes than Hudson. John Manning received 2,113; Jeff Young, 914; William Underwood, 923; Tom Taylor, 763; and T. J. Hudson, 753. Manning was awarded the certificate of nomination. Hudson was not convinced by this showing that he had failed to receive a plurality of the legal votes cast in the primary election, and he instituted this contest against Manning, Young, Underwood, and Taylor. He alleged in his petition that each of the defendants had violated the Corrupt Practice Act (Ky. St. § 1565b-1 et seq.), and this was the sole ground of contest. Young and Underwood failed to answer, and Taylor answered, merely denying that he had violated the Corrupt Practice Act. The petition was filed and summons issued on August 19, 1933, and Manning filed an answer and counterclaim on August 25, 1933. The contestant moved to strike the answer and counterclaim on the ground that it was filed in the clerk's office before summons was served on the contestee Manning, and also on the ground that it had not been verified. No proof was taken by contestant to sustain his charge against any of the contestees, and the case was submitted on the pleadings. The court overruled his motion to strike the answer and counterclaim, and dismissed his petition. The return on the summons was as follows:
"Executed within summons by giving John Manning, William Underwood, T. J. Young, Tom Taylor a true copy of same.
August 26, 1933.
After the motion to strike the answer was filed, the contestee Manning moved the court to require the sheriff to amend his return on the summons by showing the exact date when same was served. A number of affidavits were filed in support of the motion and oral proof was heard by the court. It was conclusively shown that the summons was served on Manning on August 22, 1933, by Led Caddell, a deputy sheriff, and on William Underwood on August 23. A summons was served on Tom Taylor on August 26, and on that day the sheriff made his return. It is argued that in election contest cases the return on the summons cannot be corrected so as to show the true date of service after the time for pleading has expired and that, since the contestee filed his answer and counterclaim on August 25 when the return on the summons showed that it was not served until August 26, the court was without jurisdiction to consider the pleading. Section 49 of the Civil Code of Practice provides that: "The return or affidavit mentioned in section 47 must state when and how the summons was served, and, if erroneous, may, with leave of the court, be amended according to the truth."
After considering the affidavits filed and the oral proof heard, the court permitted the sheriff to file an amended return on the summons, showing that it was served on Manning on August 22. Under section 49 of the Code, the court had power to permit the sheriff to amend his return in accordance with the facts. Kentucky Central Division of Texas-Louisiana Power Company v. Purvis, 242 Ky. 565, 46 S.W.2d 1065; Cumberland County v. Lewis, 108 S.W. 347, 32 Ky. Law Rep. 1300. But, even if the summons had not been served until August 26, the answer was not filed prematurely. If the petition was filed and summons issued, the contestee was not required to wait until the summons was served on him before filing his answer, but he could waive the service of summons and enter his appearance.
Appellant relies upon the case of Lilly v. O'Brien, 224 Ky. 474, 6 S.W.2d 715, in which it was held that a contest filed before the final action of the board of canvassers was not within the jurisdiction of the court. That case has no application here because the court acquired jurisdiction of the subject-matter when Hudson filed his petition.
Prior to the enactment of chapter 50 of the Acts of 1930,...
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