Campbell v. Mason
| Decision Date | 18 May 1937 |
| Citation | 106 S.W.2d 100,269 Ky. 128 |
| Parties | CAMPBELL v. MASON, Sheriff, et al. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 25, 1937.
Appeal from Circuit Court, Laurel County.
Action by Richard Campbell against Mrs. Fred B. Mason, as Sheriff of Laurel County, and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
H. C Clay & Sons, of London, for appellant.
Wm Lewis & Son, George S. Crawford, and William A. Hamm, all of London, for appellees.
CREAL Commissioner.
At an election held on December 15, 1936, for the purpose of taking the sense of the legal voters of Laurel county upon the proposition whether or not spirituous, vinous, or malt liquors should be sold in such county, 2,503 voters voted "yes" or in favor of the adoption of the local option law in that county, and 1,141 voted to the contrary. After the result of the election had been duly certified, Richard Campbell, a citizen, resident, and qualified voter of the county, instituted this action against the members of the county board of election commissioners of Laurel county contesting the election on a number of grounds.
Summons was served on Mrs. Fred L. Mason, as sheriff and ex officio member of the county board of election commissioners, and on Arlie Magee, a member of such board on January 9, 1937, and on Bill McHargue, the other member of the board on January 11, 1937. The parties are referred to in the record and in briefs as plaintiff and defendants, rather than contestant and contestees, and we shall do likewise.
On January 29, one of the attorneys for defendants went to the office of the clerk of the Laurel circuit court and handed to his deputy a general demurrer to the petition, a motion to require plaintiff to make the petition more definite and certain in a number of particulars, and also the joint answer of the defendants. The deputy clerk made on the demurrer the following indorsement, The motion and answer were similarly indorsed.
On rule day, February 1, 1937, the following order was entered: "This day came defendants herein, by counsel, and produced and filed a demurrer to the plaintiff's petition in this case, and on motion of said defendants, it is ordered that the filing of said demurrer be and same is hereby noted of record." The same character of order was made with reference to the motion and answer.
On the same rule day, plaintiff filed a motion to strike from the record the demurrer, motion, and answer of defendants because neither of such pleadings had been filed within 20 days after the service of the summons on defendants as required by law, and without waiving the motion to strike, filed a general demurrer to the answer, and without waiving motion or demurrer, filed reply completing the issues.
On final hearing the court rendered an extended opinion and adjudged that the petition be dismissed and plaintiff take nothing thereby and defendants recover the costs, and plaintiff is appealing. Since all questions discussed by counsel for respective parties were in issue in the pleadings, we deem any further recitation of the allegations of the pleadings unnecessary.
It is first argued by counsel for appellant that their motion to strike the demurrer, motion, and answer filed by appellees should have been sustained because not filed within 20 days after the service of summons as is mandatorily required by law. The statute relating to local option elections (section 2554c-13) provides that contest of such elections shall be conducted in the same manner as contest of general elections of county officers as provided in section 1596a-12, Kentucky Statutes. Section 1596a-12 provides that in a contest of general election of county officers, the contestee shall file his answer within 20 days after the service of summons upon him. It is the contention of counsel for appellant that the answer was not filed until rule day on February 1, which was not within 20 days after the service of summons on Bill McHargue; and that even if the answer be treated as filed on January 29, that was not within 20 days after summons had been served on Mrs. Mason and Arlie Magee, and that in either event the answer came too late.
The right to contest elections is purely statutory and controlled by the statute. In elections of public questions of this character, there would not, in the absence of a statute, be any one against whom a contest proceeding could be instituted. To circumvent such an anomalous situation, it was provided by section 2554c-13 that in local option elections the members of the county election commission should be named as contestees and process served on them, but that any qualified elector might intervene by filing a petition to be made a party and thereby become a contestee. The purpose of this statute is manifest, and it is apparent that it was intended thereby that any one or more of the members of the county election commission or any voter or voters of the county might resist the contest.
Without determining whether a default judgment would be authorized in the contest of election on a public question because of the failure of those who may be designated as contestees to file answer, it is our conclusion that if the answer in this instance was filed on the 29th day of January, the court did not err in refusing to strike the answer even though it was not filed within 20 days after summons had been served upon Mrs. Mason and Arlie Magee, since under any rule for computation of time, it was within 20 days after summons had been served on Bill McHargue and his answer alone would have been sufficient.
It is earnestly argued by counsel for appellant that the answer was not filed on January 29, but as shown by the clerk's indorsement on the pleading it was lodged with the clerk on that day with directions to file it on February 1, rule day. Evidence was heard on that question. The deputy clerk testified that the answer was lodged with him on January 29 with directions to file on rule day, February 1, and that he followed the directions of the attorney; however, he delivered copies of the answer, demurrer, and motion to counsel for appellant on January 30. The attorney for appellees testified that he gave the answer and other pleadings to the clerk or his deputy on January 29 to be filed in the case, but without any directions to the clerk. In Kohlman v. Moore, 175 Ky. 710, 194 S.W. 933, it was held that where a defendant left an answer with the clerk of the court to be filed on a future rule day, he constituted the clerk the agent of himself and his client and the failure of the clerk to file the answer in the absence of unavoidable casualty should be treated as the failure of the litigant; but according to the evidence for appellees there was no direction in this instance to withhold the filing of the pleading until a future date.
In Daniel v. Blankenship, 177 Ky. 726, 198 S.W. 48, it appears that a party had delivered a certificate of nomination to the clerk with a request that it be filed. It was held that this constituted "filing" within the contemplation of the election law notwithstanding the failure of the clerk to indorse on the paper over his signature the day and the fact of its filing. In Day & Congleton Lumber Co. v. Stadler & Co., 139 Ky. 587, 69 S.W. 712, 714, 24 Ky.Law Rep. 640, the court after referring to the provisions of section 669 of the Civil Code of Practice, which provides that "the clerk shall indorse, upon every paper filed in an action, the day of filing it," said:
In Commonwealth v. O'Bryan, Utley & Co., 153 Ky. 406, 155 S.W. 1126, 1128, it is said:
In West v. State, 108 Tex.Cr.R. 647, 2 S.W.2d 271, it was held that a delivery of a complaint to the clerk in the proper office was...
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Harris v. Cannon
...we conceived to be the mandatory requirements, and in the former covering the points generally. We may also refer to Campbell v. Mason, 269 Ky. 128, 106 S.W. 2d 100; Booth v. McKenzie, 302 Ky. 215, 194 S.W. 2d 63, and the recent case, Adams v. Wakefield, 301 Ky. 35, 190 S.W. 2d 701. On poin......
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Donohue v. Swindler
...may fix another day in his discretion, not earlier than 60 days after the application is lodged with him.' Appellant cites Campbell v. Mason, Sheriff, et al., supra, because writer of the opinion quoted the inadvertent statement in Skaggs et al. v. Fyffe, supra, so strongly relied on by app......
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Central Paper Co. v. Commissioner of Internal Rev.
...Palcar Real Estate Co. v. Commissioner, 8 Cir., 131 F.2d 210, 213; Milton v. United States, 5 Cir., 105 F.2d 253, 255; Campbell v. Mason, 269 Ky. 128, 133, 106 S.W.2d 100. Treating Rule 5 as applicable, the petition was nevertheless legally filed in the Clerk's Office at the latest on the n......
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Harris v. Cannon
...what we conceived to be the mandatory requirements, and in the former covering the points generally. We may also refer to Campbell v. Mason, 269 Ky. 128, 106 S.W.2d 100; Booth v. McKenzie, 302 Ky. 215, 194 S.W.2d 63, the recent case, Adams v. Wakefield, 301 Ky. 35, 190 S.W.2d 701. On point ......