Cosby v. Moore

• Decision Date: 19 March 1953
• Docket Number: 4 Div. 729
• Parties: COSBY v. MOORE.
• Court: Alabama Supreme Court

Page 178

65 So.2d 178

259 Ala. 41

COSBY v. MOORE.

4 Div. 729.

Supreme Court of Alabama.

March 19, 1953.

Rehearing Denied May 28, 1953.

Robt. B. Albritton and J. M. Albritton and Albrittons & Rankin, Andalusia, for appellant.

F. B. McGill and A. R. Powell, Jr., Andalusia and J. C. Fleming, Elba, for appellee.

PER CURIAM.

This is a contest instituted by appellant against appellee of his election as mayor of the City of Opp, Alabama. From a judgment dismissing the proceeding contestant has appealed.

Appellee has moved the Court to dismiss the appeal on the ground that all the parties against whom the judgment was rendered did not appeal, and notice was not given them as provided in section 804, Title 7, Code. The judgment rendered in the trial court was against the named sureties on the instrument securing the costs. Under authority of Sellers v. Smith, 143 Ala. 566, 39 So. 356, they should join in the appeal to this Court, or be subject to section 804, supra. But those not joining in the appeal have appeared and waived the notice referred to and united in the assignments of error. That procedure satisfies section 804, supra. Lane v. Henderson, 232 Ala. 122, 167 So. 270; Barker v. Barker, 249 Ala. 322, 31 So.2d 357.

Appellee insists here, as he did in the trial court, that the security for costs given when the contest was filed was insufficient to confer jurisdiction of it on that court. That of course is a jurisdictional requirement. It is insisted that the statute requires a formal bond signed by a principal and sureties. The statute, section 238, Title 17, Code, requires contestant at the time of commencing the contest to 'give security for the cost of such contest, to be filed and approved as in this article provided'. Other provisions in the statutes refer to the sureties for cost. Sections 242 and 251, Title 17, Code. There is no requirement as to the form of the security, provided it secures all the costs without limit in amount. Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Lowery v. Petree, 175 Ala. 559, 57 So. 818. Reliance is had on Painter v. Mauldin, 119 Ala. 88, 24 So. 769. But that opinion was closely limited in Hannis Distilling Co. v. Lanning, 191 Ala. 280, 68 So. 137, so that it has no application to the present situation. Birmingham News Co. v. Moseley, 225 Ala. 45, 141 So. 689. And it is pointed out in Mayfield v. Court of County Commissioners of Tuscaloosa County, 148 Ala. 548, 41 So. 932, that when the requirement is to give security for costs (with no supersedeas) it is only necessary that the surety should so acknowledge himself, and that the principal need not sign. The authorities cited support the conclusion. Spencer v. Thompson, 24 Ala. 512; Crump v. Wallace, 27 Ala. 277; Satterwhite v. State, 28 Ala. 65; Marshall v. Croom, 50 Ala. 479. See Mancill v. Thomas, 216 Ala. 623, 144 So. 223; Clary v. Cassels, Ala.Sup., 61 So.2d 692.

This contention by appellee is not well supported, and the motion to dismiss is overruled.

We now reach the pivotal question which was decisive in the trial court. That is, that contestant had abandoned the office and was therefore estopped to conduct this proceeding contesting the election of appellee as mayor of Opp, Alabama, a city of less than 6,000 inhabitants. Appellant, who was then mayor of said city, was a candidate for re-election to such office in an election held on September 15, 1952. Appellee was also a candidate for said office in said election. On September 16, 1952, the mayor and councilmen of Opp in session canvassed the returns made by the inspectors of the election and found and declared that appellee had, according to those returns, received a majority of the votes cast for mayor and was accorded the winner over appellant. Appellant on October 3, 1952 filed a contest of said election, which is now under consideration, on the ground of illegal votes cast for appellee in said election. On October 6, 1952, appellee took the oath of office and has held it pending this proceeding.

The election was held under an Act approved July 6, 1945, General Acts 1945, p. 699; Title 37, section 34 plus pocket part, Code. The time for holding the election is there fixed. Section 34(2). Notice of it must be given by the mayor and clerk in the form and in the manner prescribed. Section 34(3). The mayor shall make duplicate copies of the list of qualified voters who reside in the city limits. Section 34(8). If the mayor is a candidate said duties as to the registration list shall be performed by a disinterested person appointed by the governing body of the city. Section 34(10). (This was done by a disinterested person so appointed.) There is no disqualification of the mayor prescribed except in section 34(10), and that only applies to the registration list. After the election the inspectors shall count the ballots and certify the results in their respective polling places to the council of the city. They (inspectors) shall count the ballots and their certificate of the results must be placed in a box furnished for that purpose and sealed and delivered to the clerk of the city. Section 34(14). Within three days after the delivery of the boxes, 'the council shall proceed to open the same and canvass the returns' and declare the results. Section 34(16).

A contest of such election may be conducted on the same grounds and in the same manner provided for contesting the election of the judge of probate. Section 34(17), Pocket Part, Code. That is provided for in section 231, Title 17, and it may be by one who at the time of the election is a qualified elector, and it must be begun within twenty days after the result is declared. Section 238, Title 17, Code. The contestee must make answer within five days after service. Section 245, Title 17, Code.

The instrument of contest alleged that the contestant, who is this appellant, was a resident citizen and qualified elector of said city, county and State, and that he was a candidate in said election for the office of mayor. It was filed within the twenty day period required by section 238, Title 17, Code, accompanied with security for costs, to which we have referred above.

There was much pleading, but the issues may be concisely stated as they are embraced in pleas A, B, C, D, E, F and G. They all rely primarily upon the case of Rainwater v. State, 237 Ala. 482, 187 So. 484, 121 A.L.R. 981, which applied the principle of abandonment in respect to quo warranto seeking to oust one who assumed an office by virtue of an election not authorized by law.

The matters set up in the pleas, on which an abandonment is based, are that the mayor was a member of the council which on September 8, 1952 passed a resolution prescribing the voting places and naming the election officers of each of the three election boxes. The mayor and five councilmen participated and voted. (The evidence of Jerry Adams attached to plea G showed that each of them [six] designated one of the election officers at each box. But the resolution showed that the mayor and councilmen sitting as such passed the resolution appointing them.) The election being held on September 15, 1952, there was a special meeting of the mayor and councilmen on September 16, 1952, when proceedings were had to canvass the returns. The minutes of that meeting were adopted by the council and approved by Travis Cosby (contestant) as mayor, and by Page as the city clerk. An appropriate resolution was passed at that meeting, but the mayor (Cosby) did not vote on it, though he presided and declared the resolution passed. It canvassed the returns and showed the number of votes cast for each of the candidates for mayor and councilmen. This included the votes cast for some of the incumbent councilmen, also candidates in the election, to wit, Adams, Dorsey and Woodham, who likewise participated in the meeting. The resolution declared the result as shown by the canvass, including contestee as elected mayor,--all for a term beginning the first Monday in October 1952. The contestee was sworn in as such mayor on October 6, 1952, (contestant was not present), and assumed the duties of said office, and has since then continued to serve as such; and that on said October 6, 1952, contestant voluntarily relinquished the office of mayor.

In plea F it is alleged that contestant on August 14, 1952, then the mayor of Opp, published or caused to be published and certified by him an official poll list of the voters of the city; and on August 28, 1952, likewise caused to be published a supplementary poll list. This is alleged in addition to the matters referred to above.

In plea G it is alleged the additional fact that prior to the election, contestant as mayor did partially supervise and handle the casting of a portion of the absentee ballots. Attached to plea G is a copy of the testimony given by Edna Hall, who served as stenographer for the city clerk, and of Jerry Adams who was a member of the city council. Miss Hall's testimony thus attached shows that contestant was present when a certain number of the absentee votes were cast. The material part of Adams' testimony, so attached, has been stated as shown above.

From those facts the pleas concluded that contestant was (1) estopped from being reinstated by the judgment of the court, and (2) had abandoned the office of mayor, and (3) was estopped from invoking the jurisdiction of the court to oust contestee from the office of mayor.

There was a proposal to amend the contest by adding other qualified electors of the town an contestants, and thereafter to make replication to the pleas. But no new issues are presented by the replications. We will later discuss the amendment to the contest.

The demurrers to the special pleas present the real controversy involved on this appeal. They were overruled. Issue was joined on the pleas, to which we have referred. There is no material conflict in the evidence as to their averments of fact. The...