Cain v. McGregor
| Decision Date | 10 November 1930 |
| Docket Number | 219 |
| Citation | 32 S.W.2d 319,182 Ark. 633 |
| Parties | CAIN v. MCGREGOR |
| Court | Arkansas Supreme Court |
Appeal from Woodruff Circuit Court, Northern District; W. D Davenport, Judge; affirmed.
STATEMENT OF FACTS.
This is a suit by W. R. Cain against A. C. McGregor to contest the primary election for county judge of Woodruff County. The parties to the suit were opposing candidates for the office of county judge at the Democratic primary election held August 12, 1930. The certificate of nomination by the county central committee was issued to A. C. McGregor as having received a majority of the legal votes cast at the election.
Within the time prescribed by statute, W. R. Cain filed his complaint in the circuit court to contest the election setting forth numerous grounds therefor. His complaint was filed on the 21st day of August, 1930, and the answer by the defendant was filed on the 30th day of August, 1930. On the 16th day of September, 1930, the contestee filed a motion to dismiss the complaint of the contestant on the ground that the collector had failed to file with the county clerk a list of poll taxpayers duly authenticated by his affidavit as required by § 3740 of Crawford & Moses' Digest.
The record shows that there was no certificate of the collector of taxes attached to any of the three lists of poll taxpayers for the three judicial districts of Woodruff County, and that he did not file an affidavit verifying any of said lists. The list of voters used in the election was prepared by the county clerk from a list of voters furnished him by a deputy sheriff or deputy collector in each of the three judicial districts of the county.
The circuit court found that this was not a substantial compliance with said § 3740 of the Digest, and that inasmuch as the complaint of the contestant was based on the list purporting to have been filed by the collector as required by the statute, the complaint should be dismissed. To reverse the judgment of the circuit court dismissing his complaint, the contestant Cain has appealed to this court.
Judgment affirmed.
Roy D Campbell, for appellant.
Reece Jones, Ross Mathis and W. J. Dungan, for appellee.
HART, C. J., (after stating the facts).
The complaint was filed on the 21st day of August, 1930, and the answer to it was filed on August 30, 1930. Thus it will be seen that the complaint and answer were filed within the time prescribed by § 3772 of the Digest.
On the 16th day of September, 1930, the contestee was allowed to file an amendment to his answer to the effect that the list of poll taxpayers duly authenticated by the affidavit of the collector in person, as required by § 3740 of the Digest, was not filed with the county clerk as required to the end that it should be recorded by the clerk and a certified copy thereof delivered by him to the election commissioners.
Recognizing the importance to the public as well as to the parties of an early decision in primary election contests, the Legislature assumed that ten days would be sufficient time for one proceeding with due diligence in a contest of this kind to learn of the grounds upon which he proposed to contest the election and to file his complaint in the case. Crawford & Moses' Digest, § 3772. The language of the statute in this respect is mandatory, and a compliance with its provisions is a pre-requisite to the exercise of the jurisdiction of the court. Introducing new grounds of contest would surprise the contestee, and require the postponement of the trial to enable him to meet such grounds. Hence we have held that amendments setting up new grounds of contest after the statutory period should not be allowed. Bland v. Benton, 171 Ark. 805, 286 S.W. 976; and Gower v. Johnson, 173 Ark. 120, 292 S.W. 382.
The same reason does not apply to the time a contestee was required to answer. He is not contesting the election. The statute properly fixes a time for him to file his answer in order to expedite the trial of the contest, and the court may permit him to answer the complaint at any time in the discretion of the court before the trial commences. Where the contestee alleges new matter therein for his defense, an amendment to his answer is the proper pleading in which to do so, and the court may allow this to be done, at any time which does not delay the trial of the contest. Irby v. Day, ante p. 595. Besides, where the contestant fails to show any legal grounds of contest by reason of failure of proof or for any other reason, defense...
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