Blackburn v. Vick

• Citation: 49 Tenn. 377
• Parties: Wm. Blackburn v. Eli Vick.
• Decision Date: 31 December 1870
• Court: Tennessee Supreme Court

49 Tenn. 377

Wm. Blackburn

v.Eli Vick.

Supreme Court of Tennessee.

December Term, 1870.

FROM DEKALB.

The proceedings in this case came by appeal from the County Court to the Circuit Court, where the judgment complained of was rendered by MCCLAIN, J.

M. M. Brien, Sr., for the contestant, insisted that the County Court had the jurisdiction to try the contest; citing the Code, 817 888, 492; Act of 1859, 60.

J. H. & R. C. Nesmith, with him, cited Hist. o?? a L. S., 513; 2 Sneed, 670.

W. G. Crowley, for defendant, insisted that the jurisdiction was in the Circuit Court; citing Code, 4225, 3409 to 3411, 3430. Constitution of 1834, Art. 6, sec. 8, gives the Legislature power to define the jurisdiction of Courts, but it has not conferred the power on the County Court: Code, 888. On costs, cited Code, 3215.

FREEMAN, J., delivered the opinion of the Court.

This is a case of contested election for office of Revenue Collector of DeKalb county, in the year 1868.

The only facts necessary to be stated in this opinion, are: That plaintiff and defendant were both candidates for the office at the March election, 1868; that upon the returns, the Coroner gave Vick a certificate of election, he having received a majority of two votes, as appeared by return of the result, as made by the officers holding the election. Thereupon, plaintiff, Blackburn, gave notice, which was duly served on Vick, that on the 6th day of April, 1868, before the County Court of DeKalb county, said notice specifying the grounds of the contest, he would contest said election. On said 6th day of April, Blackburn appeared before the County Court, and filed a paper, which may be treated as the pleading on which the contest was to be made, in which he resists the inducting of Vick into the office, and, for reasons therein stated, claims the office for himself. We need not go into the sufficiency of the allegations thus made, as the case must be decided here upon another question, perhaps the only one properly before us.

The defendant, Vick, filed various pleas, to which there were replications, and after this, demurrers, and various other proceedings, sufficient to involve the record in almost inextricable confusion.

Suffice it to say, that in the midst of the various pleas, demurrers, motions and exceptions to the action of the Court upon these pleadings, the Court proceeded to induct defendant, Vick, into the office, by administering to him the oath of office, and taking bond as required by law. The record states, however, “that the Court reserves the question of the merits of the contest for further consideration.” To all of which plaintiff excepted.

After various motions, and action on a demurrer, Blackburn was ordered to give security for costs by the next term of the court; the defendant was allowed to plead or answer within six days; and thereupon the cause was continued till next term of the County Court. Bond was given by Blackburn at the May Term, as required by the Court; and on the 6th day of May, the case seems to have been heard, and after argument of counsel, as the record states, “for want of time to consider of their verdict, the court adjourned” till next day. On that day the court met and gave a judgment, as follows: “It was ordered, adjudged, and decreed by the Court, that Eli Vick was, on the first Saturday in March, duly and constitutionally elected to the office of Revenue Collector for DeKalb County, for the term of two years.” Judgment was rendered against Blackburn for costs, and thereupon Blackburn appealed to the Circuit Court.

This appeal came on to be heard in the Circuit Court, when, upon argument of the case, “the Court was of the opinion that the County Court had no jurisdiction of the contest,” and sustained the defendant's motion to dismiss the appeal. The Court gave judgment against Blackburn for all costs, but afterward, on motion, retaxed the costs, and gave judgment for all costs “incident to the summons and attendance of witnesses in the Circuit Court, in behalf of defendant, Vick, against the said Vick, and plaintiff to pay all the balance of the costs in the Circuit Court, and all costs in the County Court.” To this judgment, dismissing the case, for want of jurisdiction in the County Court, plaintiff, Blackburn, excepts, and prays an appeal to this Court, and also tenders exceptions to the taxation of the costs.

The simple question presented for our consideration, is, did the Circuit Court err in its judgment, dismissing the appeal for want of jurisdiction in the County Court?

We find no provision made for contesting the election of Revenue Collector, either by the Code, or by the act of 1859, c. 9, p. 6, providing for their election by the people, instead of by the County Court as was provided by the Code, 817, nor in any subsequent act of the Legislature. We must, then, either assume that no such contest was to...