Buchanan v. Parham

• Decision Date: 09 May 1910
• Citation: 128 S.W. 563,95 Ark. 81
• Parties: BUCHANAN v. PARHAM
• Court: Arkansas Supreme Court

128 S.W. 563

95 Ark. 81

BUCHANAN v. PARHAM

Supreme Court of Arkansas

May 9, 1910

Appeal from Garland Circuit Court; W. H. Evans, Judge; reversed.

Both judgments reversed and proceedings dismissed.

Wood & Henderson, for appellants.

If Parham had any right to proceed on the bond in the circuit court, it was by a regular suit on the bond. Kirby's Dig., §§ 2865, 2867.

C. V Teague, for R. L. Williams and Ed Parham.

The right to recover costs is statutory. 60 Ark. 194. There is no statute authorizing the recovery of costs in special proceedings like this. 70 Ark. 240. But Parham was entitled to a judgment against the contestant for the cost of the transcript. 68 Ark. 130.

M. S Cobb, for Ed Parham.

The mandate of the Supreme Court gave the circuit court jurisdiction of the parties and the subject, and it was bound to proceed in accordance with the judgment rendered by this court. 60 Ark. 50; 18 Ark. 292; 56 Ark. 170. The bondsmen were not entitled to notice before judgment was rendered against them. 68 Ark. 130.

OPINION

McCULLOCH, C. J.

The present appeal grows out of the election contest between S A. Buchanan and R. L. Williams for the office of sheriff of Garland County, which was decided by this court on the appeal of Williams. Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024. Buchanan was the contestant, and judgment in his favor was rendered by the circuit court, declaring him to have been elected to the office of sheriff and ousting the contestee, Williams, from office; and, also, a judgment was rendered in his favor for the emoluments of the office which had been collected by the contestee. This court affirmed that part of the judgment which declared the contestant to have been elected, but reversed the judgment of ouster and for the emoluments; and this court rendered judgment in favor of Williams for all the costs of the appeal.

At the commencement of the contest Buchanan, the contestant, gave a bond, with William McGuigan as surety, in accordance with the statute, conditioned to pay to the contestee and the officers of the court such sums as should be adjudged against him. After the rendition of the aforesaid judgment of this court, Buchanan filed a motion in the Garland Circuit Court to tax the costs of the contest against Williams, his unsuccessful adversary. The latter was served with notice or summons, and appeared and resisted the motion on the ground that the court was without jurisdiction to render a judgment in favor of the contestant for costs in an election contest. At the same time Ed Parham, who was clerk of the circuit court during the pendency of the contest, filed a motion praying that his fee for making the transcript on the appeal to this court be taxed, and that judgment be rendered in his favor for the amount of the unpaid balance against Buchanan and the surety on his bond. This motion was resisted by both Buchanan and McGuigan, his surety. On the hearing of both motions together, the circuit court rendered judgment in favor of Buchanan against Williams for the amount of the costs of the contest in the county court and in the circuit court, and also rendered judgment in favor of Parham against Buchanan and McGuigan for the amount of his unpaid cost for making the transcript on appeal to this court. Williams appeals from the judgment in Buchanan's favor against him; and Buchanan and McGuigan appeal from the judgment in Parham's favor against them. It is therefore seen that two distinct controversies are presented.

First, as to the controversy between Buchanan and Williams: No express authority is found in the statute for rendering judgment against an unsuccesful contestant in an election contest which originates in the county court. In Rhodes v. Driver, 69 Ark. 606, 65 S.W. 106, this court said that in an election contest originating in the county court the jurisdiction of the court is limited "to an order declaring the contestant elected, and, incidentally, to a judgment for cost." In Davis v. Moore, 70 Ark. 240, 67 S.W. 311, the court, in an opinion by Chief Justice BUNN, intimated that there is no authority to render judgment for cost in favor of a successful contestant, and cited cases in support of that view. In both opinions the language referring to judgments for costs was dictum; but in the last cited case the court decided that "election contests are special proceedings, and not civil actions under the Code, and everything must be done therein according to the statute regulating such proceedings, where such statute exists."

In Williams v. Buchanan, supra, Chief Justice HILL, in delivering the opinion of the court discussed the several statutes relating to election contests, and pointed out that the section authorizing circuit courts in contests for the office of supreme judge, judges of the circuit, chancery and county courts, and prosecuting attorney, to render judgments of ouster and for damage and cost of suit, had no application to contests originating in the county courts. He further said, however, that "the Legislature has decided that it is not wise to give to the county court power to oust the contestant from office and to give judgment for anything other than the costs." The question of costs of the contest does not seem to have been argued in the briefs, and the Chief Justice was merely discussing the question of the authority to render judgment of...