Bingham v. Anderson

• Decision Date: 12 June 1923
• Citation: 199 Ky. 680,251 S.W. 973
• Parties: BINGHAM v. ANDERSON, AND THREE OTHER CASES.
• Court: Kentucky Court of Appeals

251 S.W. 973

199 Ky. 680

BINGHAM v. ANDERSON, AND THREE OTHER CASES.

Court of Appeals of Kentucky

June 12, 1923

Appeal from Circuit Court, Bell County.

Four separate election contests by D. M. Bingham against T. G Anderson, by James F. Asher against Martin Green, by Edward Pursifull against Henry Broughton, and by Frank Kearns against James Howard, consolidated for trial. From a judgment for contestee in each case, the contestants separately appeal. Judgments affirmed.

Cleon K. Calvert and James M. Gilbert, both of Pineville, for appellants Bingham and Asher and appellees Broughton and Howard.

William Low, of Pineville, for appellants Pursifull and Kearns and appellees Anderson and Green.

Hall Jones & Lee, of Harlan, for appellee Howard.

McCANDLESS J.

At the regular November, 1921, election in Bell county, the Republican nominees for county attorney, sheriff, county clerk, and jailer were opposed by candidates on an Independent ticket. The rival candidates in the order of the offices named above were: Republicans, D. M. Bingham, James Asher, Henry Broughton, and James Howard; Independents, T. G Anderson, Martin Green, Edward Pursifull, and J. T Kearns.

Certificates of election were awarded Anderson and Green, Independents, and Broughton and Howard, Republicans. The several losers contested the election, and a great deal of evidence was taken. On submission the lower court dismissed all the contests filing a written opinion in each case, his conclusions being in part:

"After a careful reading of the record and the contentions of each of the parties, I am of the opinion that the vote in several precincts should be eliminated from the entire vote cast for plaintiff and defendant, but, if this were done in my opinion, the result would not be changed. * * * There being no fraud shown on the part of either plaintiff or defendant, I have reached the conclusion that the defendant was legally elected to the office he now holds."

The four contestants have filed separate appeals in this court.

In taking depositions, evidence was taken in each of the several cases, and by a stipulation filed of record it was agreed that in the lower court they were to be heard and tried together, and all the evidence considered in each case, which was done. The judgment of the lower court was entered June 19, 1922. On June 29, 1922, the contestants Bingham, Asher, and Pursifull, filed separate schedules in the office of the circuit clerk of Bell county, each directing him to copy into one transcript all of the pleadings and orders in his respective case, and all the evidence taken in all the cases, and the contestant Kearns did the same on July 13, 1922.

On that day, July 13, 1922, a stipulation was signed by the attorneys for all the contestants, in which it was agreed that a transcript of the evidence was to be filed in the office of the clerk of this court, in the case of Asher v. Green; that it was an entire and complete transcript of all the evidence heard in the lower court; that each of the contestants should file separate transcripts of the pleadings, motions, demurrers, and orders in his individual case, and same, together with the transcript of evidence in the Asher-Green Case, should constitute the entire record; and on July 17 the clerk did file a purported record in accordance with this stipulation. Later, on September 18, without asking this court for an extension of time, Pursifull had the record copied and offered to file supplemental transcript. On September 22, 1922, Frank Kearns requested additional time to file transcript. On the 18th of September each of the various contestees moved the court to strike from the record the purported transcript of the evidence filed in case of Asher v. Green, on the ground that it was not a transcript, but the original depositions in the case; and in support of the several motions each contestee filed the affidavit of the clerk in which he states such to be the fact; that at the suggestion and direction of the various attorneys for the contestants he removed the covers from the original depositions, and rebacked each set, and marked them as a transcript, and sent them up as such, but in fact did not copy any of them. He further states that he had time and could have copied all of the record in 30 days, but that contestant did not ask for it until June 29, 10 days after judgment was rendered. These various motions were passed to the merits, and are now consolidated, all of the cases being heard together.

Section 1596a12, Kentucky Statutes, provides:

"* * * Either party may appeal from the judgment of the circuit court to the Court of Appeals by giving bond to the clerk of the circuit court, with good surety, conditioned for the payment of all costs and damages the other party may sustain by reason of the appeal and by filing the record in the clerk's office of the Court of Appeals, within thirty days after final judgment in the circuit court. And in the Court of Appeals the case shall be heard and determined as speedily as possible, and shall have precedence over all other cases. * * *"

The public is entitled to the services of the duly elected officers, and it is the legislative policy to provide a speedy determination of election contests, and the provision supra, for the execution of bond and record in 30 days, has been construed as mandatory, and that such action in such time in both particulars is essential to give this court jurisdiction of an appeal in a contest case, and that a failure to file either in that time will result in a dismissal of the appeal. Lykins v. Steele, 76 S.W. 39, 25 Ky. Law Rep. 536; Krinn v. Helmbold, 113 Ky. 759, 68 S.W. 1103, 24 Ky. Law Rep. 551; Kash v. Strong, 165 Ky. 844, 178 S.W. 1133.

For the present, passing the question raised by contestants Pursifull and Kearns in the motion of the former to file additional record on September 18, and of the latter to extend time for him to prepare transcript: The affidavit of the clerk as to the manner in which this record is made up is not controverted, and must be accepted as true. This raises two questions: First, can his original certificate be impeached in this way? Second, if thus impeached, can this court consider the original depositions thus brought up as a transcript of the evidence?

On the first proposition contestants rely on section 3760, Kentucky Statutes, which provides:

"Unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a statement, in writing, either in the form of a certificate, return, or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer."

The purpose of this statute is to stabilize public records, and it has been liberally construed in a number of cases especially in reference to certificates of acknowledgment of deeds. Tichenor v. Yankey, 89 Ky. 513, 12 S.W. 947, 11 Ky. Law Rep. 712; Cox v. Gill, 83 Ky. 669; Dowell v. Mitchell, 82 Ky. 47; Dukes v. Davis, 125 Ky. 313, 101 S.W. 390, 30 Ky. Law Rep. 1348. But, on the other hand, it anticipates mistakes on the part of officers and fraud upon the part of those to be benefited, and makes an exception in each instance. These exceptions seem peculiarly applicable to the facts of this case. Here the clerk, at the instance of contestants, took the covers from the original depositions, and it seems removed the original certificates of the notaries and substituted those with typewritten...