Edwards v. Logan

• Decision Date: 01 October 1902
• Citation: 69 S.W. 800
• Parties: EDWARDS v. LOGAN. [1]
• Court: Kentucky Court of Appeals

69 S.W. 800

EDWARDS v. LOGAN. ^[1]

Court of Appeals of Kentucky.

October 1, 1902

Appeal from circuit court, Edmonson county.

"Not to be officially reported."

Election contest between E. W. Edwards and M. M. Logan. From the judgment, Edwards appeals.

Motion by appellee to dismiss appeal, and motion for a subp na duces tecum. Denied.

John E Du Bose, W. B. Gaines, and Edward W. Hines, for appellant.

Wilkins & Lay, D. W. Wright, and Wm. Cromwell, for appellee.

O'REAR J.

This is a contested election case. The judgment in this case was rendered on June 28, 1902. The transcript was filed in the office of the clerk of the court of appeals July 28, 1902. After the case was submitted in this court, appellee moved to dismiss the appeal because the transcript had not been filed within the time prescribed by the statute,--30 days. Had this motion been made before the case had been submitted upon its merits, it must have prevailed. Board of Councilmen of City of Frankfort v. Farmers' Bank of Kentucky (Ky.) 49 S.W 811. But it has been held in Bixler's Adm'x v Parker, 3 Bush, 166, and followed in Nickell v. Bank (Ky.) 60 S.W. 408: "A failure to make motion to dismiss the appeal because the record was not filed within the time prescribed by law until after the case was submitted on final hearing must be regarded as a waiver of the right." This case was submitted for decision on final hearing on September 19, 1902, with 10 days leave to file briefs. On September 23, 1902, appellee entered this motion to dismiss the appeal. Following the cases above cited, the motion to dismiss must be overruled.

Appellee has asked for a subp na duces tecum to require the clerk of the circuit court to transmit to this court all the ballots in this case. The petition under which the present statute (section 12, act approved October 24, 1900, of the Acts of the Extraordinary Session of the General Assembly of 1900) takes the place of the notice of contest formerly provided by statute. That section provides: "Such petition shall be filed and process issued in the case of an officer elective by the voters of the whole state or any district comprising more than one county, within thirty days after the final action of the board of canvassers, and in case of any other office, within ten days after such action; and shall state the grounds of the contest relied on and no other grounds shall afterwards be relied upon." Acts 1900, p. 39. The petition in this case enumerates a number of specific charges of illegal voting occurring in certain precincts; also certain alleged errors of election officers and canvassing officers in certain named precincts. These charges are set out with particularity and detail. The petition then adds that the county canvassing board "made grave errors" in the count and tabulation of the vote of the county, to plaintiff's loss and disadvantage. It is also charged that many voters of the opposite political faith "crossed over and voted for him [plaintiff], and that by counting and tabulating for him crossed voters by such...