Cain v. McGregor, 219.

• Court: Supreme Court of Arkansas
• Writing for the Court: Hart
• Citation: 32 S.W.2d 319,182 Ark. 633
• Parties: CAIN v. McGREGOR.
• Docket Number: No. 219.,219.
• Decision Date: 10 November 1930

32 S.W.2d 319 182 Ark. 633 CAIN
v.
McGREGOR. No. 219. Supreme Court of Arkansas. November 10, 1930.

Appeal from Circuit Court, Woodruff County; W. D. Davenport, Judge.

Suit to contest primary election by W. R. Cain against A. C. McGregor. From a judgment dismissing the complaint, contestant appeals.

Affirmed.

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

Page 320

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 tax payers duly authenticated by his affidavit as required by section 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 tax payers 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 section 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.

Roy D. Campbell, of Little Rock, for appellant.

Reece Jones and Ross Mathis, both of Cotton Plant, and W. J. Dungan, of Augusta, 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 section 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 tax payers duly authenticated by the affidavit of the collector in person, as required by section 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...