Casey v. Burdine, 4-8714.

• Decision Date: 21 February 1949
• Docket Number: No. 4-8714.,4-8714.
• Citation: 217 S.W.2d 613
• Parties: CASEY v. BURDINE.
• Court: Arkansas Supreme Court

217 S.W.2d 613

CASEY v. BURDINE.

No. 4-8714.

Supreme Court of Arkansas.

February 21, 1949.

Appeal from Circuit Court, Newton County; Garner Fraser, Judge.

Proceeding by Elmer R. Casey against Guy Burdine, contesting the election of defendant to a place on the county Board of Education in Newton County. From the judgment plaintiff appeals.

Affirmed.

W. J. Cotton, of Harrison, for appellant.

A. B. Arbaugh, of Jasper, for appellee.

McFADDIN, Justice.

This is a proceeding between rival candidates for a place on the County Board of Education in Newton County. The school election was held on March 20, 1948, and on the face of the returns Burdine received a majority of the votes. He was certified as elected, and Casey undertook to contest the election. The following chronology of dates and events in 1948 presents the factual situation:

I. April 2nd, Casey filed his complaint in the County Court to contest Burdine's election.

II. April 21st, Burdine moved that the complaint be dismissed, saying: "* * * that the County Court has no jurisdiction to try contests in school elections; that said contest, * * * should be tried by the County Board of Education."

III. April 30th, the motion to dismiss was granted by the County Court. The record fails to show that Casey moved to transfer the contest to the County Board of Education, or asked for a nonsuit, or saved any exceptions to the order of dismissal.

IV. April 30th, Casey filed his complaint before the County Board of Education, seeking to contest Burdine's election.

V. May 12th, Burdine moved that the complaint be dismissed by the County Board of Education, since the election was on March 20th, and the contest was not filed with the County Board of Education until April 30th, whereas Act 406 of 1947 limits the time of filing the contest to 20 days after the election.

VI. May 12th, the County Board of Education sustained the said motion, and dismissed the complaint; and Casey appealed to the Circuit Court.

VII. July 6th, the Circuit Court affirmed the action of the County Board of Education in holding that the contest was filed too late; and to reverse the Circuit Court judgment, Casey has appealed.

It is conceded by all parties that Casey's contest should have been filed originally before the County Board of Education. See McLeod v. Richardson, 204 Ark. 558, 163 S.W.2d 166 and Attwood v. Rodgers, 206 Ark. 834, 177 S.W.2d 723. Likewise, it seems to be conceded that the time for instituting the contest was 20 days after the election, as fixed by Act 406 of 1947. But appellant makes the contentions which we will now list and discuss.

First: Appellant contends that he filed the contest within the 20-day period in the County Court, and that the County Court should have transferred the cause to the County Board of Education, so as to prevent the present plea of limitations. In support of this contention, appellant cites section 1243, Pope's Digest, and these cases: Wood v. Stewart, 81 Ark. 41, 98 S.W. 711; Crawford County Bank v. Bolton, 87 Ark. 142, 112 S.W. 398; Lawler v. Lawler, 107 Ark. 70, 153 S.W. 1113; Tomlinson Bros. v. Hodges, 110 Ark. 528, 162 S.W. 64.

Section 1243, Pope's Digest comes to us from Section 7 of the Civil Code of 1869. As reflected by the Sections preceding and following it and in pari materia, Section 7 relates to the transfer of a cause from the law court to the equity court and vice versa, and affords no authority for the transfer of an election contest to the County Board of Education after the contest had been erroneously filed in the County Court. The strict nature of an election contest is discussed in the succeeding portion of this opinion. Furthermore, Casey— by filing a new proceeding before the County Board of Education—accepted as final and correct the County Court order of dismissal, and cannot now be heard to say otherwise.

Second: Casey urges that the effect of the County Court order of dismissal was the same as though he (Casey) had taken a voluntary nonsuit under Section 8947, Pope's Digest; and he claims that under that section he had one year after the County Court order of dismissal in which to file a proceeding before the County Board of Education. To support his contention, Casey cites, inter alia, Little Rock, M. R. & T. R. Co. v. Manees, 49 Ark. 248, 4 S.W. 778, 4 Am.St.Rep. 45, which holds that, although an action be brought in a court without jurisdiction, still the pendency of such action will arrest the statute of limitations if a proper action be commenced within one year after the judgment in the first action be vacated.

We hold that the said nonsuit statute and the...