Chafin v. Wellman

• Decision Date: 14 November 1972
• Docket Number: No. 13265,13265
• Citation: 192 S.E.2d 490,156 W.Va. 236
• Court: West Virginia Supreme Court
• Parties: Tom C. CHAFIN et al. v. Hugh WELLMAN et al.

Page 490

192 S.E.2d 490

156 W.Va. 236

Tom C. CHAFIN et al. v. Hugh WELLMAN et al.

No. 13265.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 20, 1972.

Decided Nov. 14, 1972.

Syllabus by the Court

1. Where a court consists of multiple members and is equally divided, the last official ruling on the matter in question is affirmed.

2. In election contest cases the county court is the judicial body and the clerk merely performs ministerial duties in carrying out the acts directed by the county court.

3. 'This Court will not consider questions, nonjurisdictional in their nature, not acted upon by the circuit court as an intermediate appellate court.' Point 1, syllabus, Pettry v. Chesapeake and Ohio Railway Company, 148 W.Va. 443 (135 S.E.2d 729).

William L. Jacobs, Parkersburg, for appellants.

W. Graham Smith, Jr., John M. Richardson, Williamson, for appellees.

BERRY, Judge:

This is an appeal from a final order of the Circuit Court of Mingo County of October 12, 1972 involving a primary election contest case, which held that the appeal from the final order of the County Court of Mingo County had been improvidently awarded and dismissed the appeal.

The appeal in this case was granted by this Court on October 17, 1972 and set for hearing by agreement of the parties on October 20, 1972, at which time it was submitted for decision upon arguments and briefs. On October 20, 1972 this Court entered an order reversing the Circuit Court of Mingo County and remanded the case with directions for the Circuit Court of Mingo County to decide the case on the merits as promptly as possible. This opinion is written now giving the reasons for the judgment of the Court on October 20, 1972.

The appellants, Tom C. Chafin, Howard B. Chambers, Melvin Brooks, Pearley Epling, Estil L. 'Breezy' Bevins, and Mrs. Carl E. Riggs, are contestants in an election contest in connection with the May 9, 1972 primary election for nomination for various offices in Mingo County, and the appellees, Hugh Wellman, Frank Blair, Donald Q. Booth, Sr., Clyde Collins, Donald Evans, Don Crum, Harry White, Charles E. Conley, Fred Goff, C. J. 'Ben' Hamilton, Clarence Justice and Mae Stallard, are contestees in the election contest case. At the hearings of the election contest before the County Court of Mingo County, the appellants contended that there were widespread voting irregularities in four precincts and that the votes in those precincts should not be counted in the total votes of the county, which would result in the contestants being the nominees for the various offices in the primary election.

On September 6, 1972 the contestants, appellants in this case, filed a petition for a writ of mandamus in this Court to compel the County Court of Mingo County to proceed without delay to decide the primary election contest case before the County Court lost jurisdiction. On September 15, 1972 the writ of mandamus was awarded by this Court, State ex rel. Chafin v. County Court of Mingo County, 191 S.E.2d 740, requiring the county court to remain in session as long as necessary to conclude the election contest case and to declare the true results of the election and enter the same on the records of the court on or before September 21, 1972.

The election contest case was concluded by the county court on September 20, 1972 and a final order was prepared by the court on September 21, 1972 deciding the election contest case. One member voted to reject all of the votes in the four precincts in question, which would have had the effect of nominating all of the contestants in the election contest. Another member of the county court voted to dismiss the election contest, which would have had the effect of nominating all of the contestees in the election contest. The third member disqualified himself and did not vote. This order was marked at the top: 'Filed 9--21--72' and signed: 'C. J. Hamilton'. At the end of the order the following appears: 'Entered this 21st day of September, 1972, at the hour of 3:40 o'clock p.m.' The order was signed 'C.J. 'Ben' Hamilton, President'. A note at the end of the order indicates that the other commissioner, Mr. Myers, did not sign the order upon the advice of one of the contestees.

It appears that the order was stamped 'ADMITTED TO RECORD' in the clerk's office at 9:11 A.M. September 22, 1972.

The circuit court granted the appeal of the contestants on October 4, 1972, but after reading the entire record the court, on October 12, 1972 was of the opinion that no final order had been entered of record by the county court by midnight September 21, 1972, and, therefore, the county court lost jurisdiction of the contest case at that time.

It is the contention of the contestants that a final order was entered by the county court on September 21, 1972 and consequently, the Circuit Court of Mingo County erred in dismissing the appeal as improvidently awarded, and furthermore, they contend the Court also erred in refusing to review and reverse the final order of the County Court of Mingo County.

It is the contention of the contestees that there was no final order entered of record by the county court on September 21, 1972 and that the circuit court did not err in dismissing the appeal. Furthermore, they contend that even if the decision of the circuit court in dismissing the appeal was erroneous, the circuit court did not rule on the merits of the case and thus the case should be remanded for this purpose before any decision on the merits is made by this Court.

It is also the contention of the contestees that the final order prepared, filed and entered by the President of the County Court of Mingo County was not a valid final order because one commissioner disqualified himself and the two...