Adcock v. Lecompt

• Decision Date: 31 October 1877
• Citation: 66 Mo. 40
• Parties: ADCOCK, Appellant v. LECOMPT.
• Court: Missouri Supreme Court

66 Mo. 40

ADCOCK, Appellant

v.LECOMPT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Barry Circuit Court.--HON. W. F. GEIGER, Judge.

Lay & Belch with John W. Wellshear for appellant.

The notice was not void, because it notified the respondent that the contest would be heard at a court to be holden at a time when no court was or could be held. The respondent was in nowise misled by the notice. He was present on the first Monday in February, and his motion to dismiss was also in the nature of a demurrer, and, in ordinary suits, would bind him as an appearance. Respondent was notified that the contest would be had at the next term of the county court; and this was by law required to be holden on the first Monday in February, 1877; and of this requirement respondent is presumed to have had knowledge. Wag. Stat., p. 573, § 57; p. 442, § 17; Lore v. McRae, 12 Ala. 444; Phillips v. Lemoyne, 4 Ark. 144; Rogers v. Miller, 5 Ill. 333; Hare v. Niblo, 4 Leigh (Va.) 359; Merrill v. Barnard, Phillips L. Rep. (N. C.) 569. Such a defect would be cured by judgment. Wag. Stat., Vol. 2, p. 1036, Sec. 19; Doan v. Boley, 38 Mo. 449; Decatur County v. Clements, 18 Iowa 536

E. L. Edwards & Son with George Hubbert for respondent.

This proceeding is a mere contest between private persons. State ex rel. Hequembourg v. Lawrence, 38 Mo. 535; State ex rel. Young v. Buskirk, 43 Mo. 111; Vail v. Dinning, 44 Mo. 210. Jurisdiction over respondent was not acquired by service of the process essential thereto. Ray County v. Barr, 57 Mo. 290; City of Boonville v. Omrod, 26 Mo. 193; Dickey v. Tennison, 27 Mo. 373. The “legal notice” required by section 52 of the statutes is designed to perform the office of a writ of summons, and section 54 requires it to set out facts as in a petition. Wag. Stat., (Ed. of 1872,) p. 573. Castello's case, (see Lackland's return, which is accepted as correctly construing the statute, page 265) 28 Mo. 259.

If contestee be not brought into court, or good grounds for contest specified, the proceeding will be dismissed, and objections in both particulars may be combined in the same motion without prejudice. Wilson v. Lucas, 43 Mo. 290. A summons returnable to a day preceding the beginning of the court, or a notice of judicial proceeding not specifying time and place, or specifying a false time or place, is void. Estee's Pl., Vol. 3, p. 275; Dickey v. Tennison, 27 Mo. 373; Holliday v. Cooper, 3 Mo. 286. 1st Tidd's Pr., (4 Am. Ed. from 9th London) top p. 163, § 164-7. In the case at bar, the county court was held, in fact, and under the law, beginning on the first Monday in February. Of this there can be no question now, although respondent was not bound to know but the time for its holding had been changed.

NAPTON, J.

The only question in this case is as to the sufficiency of a notice in a contested election for the office of collector. The notice was as follows: “You will take notice that at the next term of the county court, within and for the county of Barry, and State of Missouri, to be begun and holden in the town of Cassville, in said county, on the first Monday in January, 1877, I will contest your election to the office of collector of the revenue, etc.” The notice proceeded to enumerate nineteen specific reasons in support of the allegation that the party notified was not elected. The next term of the county court, held after this notice, was on the first Monday in February--and no court was held in January. At the session of the court in February, the contestee filed a motion to quash the notice, which was overruled. On appeal to the circuit court this motion was sustained, and the contestant appealed to this court.

The statute concerning contested elections, (1 Wag. Stat., p. 573, Sec. 57,) requires them to be determined at the first term of the county court, which shall be held fifteen days after the official count. The statute does not say that this term shall be the regular term, or special term or adjourned term-- but the first term or session of the court, whether regular, adjourned or special. The statute did not necessarily require the notice in this case to specify the first Monday in February, for there might have been a change in the regular term, or there might have been an adjourned...