Davidson v. Johnson

• Decision Date: 29 April 1902
• Citation: 67 S.W. 996,113 Ky. 202
• Parties: DAVIDSON v. JOHNSON. [1]
• Court: Kentucky Court of Appeals

67 S.W. 996

113 Ky. 202

DAVIDSON v. JOHNSON. ^[1]

Court of Appeals of Kentucky.

April 29, 1902

Appeal from circuit court, Kenton county.

"To be officially reported."

Contest by George H. Davidson of the election of W. A. Johnson to the office of mayor of the city of Covington. Judgment for contestee, and the contestant appeals. Affirmed.

W. H MacKoy, F. M. Tracy, and Harvey Meyers, for appellant.

B. F Graziani, for appellee.

GUFFY C.J.

The appellant and appellee were at the November election, 1899 candidates for the office of mayor of Covington, and as such were voted for. The election commissioners, after receiving the returns and canvassing the same, issued a certificate of election to the appellee, Johnson. Soon thereafter the appellant served notice of contest upon the appellee, notifying him that appellant contested his election, and would, before the said election commissioners of Kenton county, claim to be the duly elected mayor of said city, and asking a judgment to that effect at the hands of the commissioners. Numerous grounds are relied upon in the notice, which need not be recited. The appellee demurred to the jurisdiction of the said commissioners to hear and determine the contest, which demurrer was overruled by the commissioners. He also sought in other ways to prevent the commissioners from hearing, trying, and determining the matter, claiming that they had no jurisdiction to do so; all of which motions and demurrers were overruled, and the commissioners, as a contest board, proceeded to hear and determine the contest upon the law and the facts. A large number of depositions were taken. The contest board, upon final hearing, dismissed the contest. From this judgment of dismissal appellant appealed to the Kenton circuit court, and executed bond, and had summons issued and served upon appellee to answer the appeal. The appellee moved to dismiss the appeal, and also entered a demurrer, and insisted that the county board of contest had no jurisdiction to hear and determine the contest. The circuit court, however, overruled the demurrer and motion to dismiss, and proceeded to hear and determine the case upon its merits, and dismissed the contest. From this order of dismissal appellant prosecutes this appeal.

It is insisted for appellee that the county board of contest had no jurisdiction to hear and determine the matter, and, that being true, the circuit court had no jurisdiction of the appeal; hence ought to have dismissed the same and sustained the demurrer of appellee; and cites the opinion of this court in Pratt v. Breckinridge, 65 S.W. 136, as being conclusive of that question. It is earnestly insisted for appellant that the appellee submitted himself to the jurisdiction of the county board, and made defense before it and hence the question of jurisdiction must be held to have been waived; and the same contention is made in regard to the proceedings in the circuit court after the appeal was taken to it. It is also suggested that the grounds of demurrer and reasons for asking a dismissal were not based upon the doctrine announced in Pratt v. Breckinridge; hence, it is argued, the contention of appellee cannot be sustained, and this court should hear and determine this cause upon its merits. It is also argued that the circuit court had jurisdiction to hear and determine the right of the party to the office of mayor. In other words, the circuit court had original jurisdiction to try the contest between these parties for the office in question, and therefore, when the case was taken to the circuit court, it should have heard and determined the matter; and it is insisted that the circuit court erred in its judgment of dismissal, and that this court ought to reverse the same. Many authorities are cited by appellant to sustain his contention, but we fail to perceive that any of them sustain the proposition contended for. In Hughes' Adm'r v. Hardesty, 13 Bush, 364, this court held that where the circuit court had jurisdiction of the subject-matter, and the parties agreed to a trial thereof upon an appeal from a justice's court, it was too late when the case reached this court to object to the proceedings in the circuit court on the ground that the circuit court had no appellate jurisdiction of the judgment in question. The facts in the case supra show that in a justice's court a replevin bond had been quashed, and the unsuccessful party prosecuted an appeal to the circuit court, where, by consent, the cause was heard, and the order quashing the bond reversed, and from that judgment the appellant prosecuted the appeal. It was the contention of appellant that, inasmuch as the circuit court had no jurisdiction of the appeal from the justice's court, such appeal should first have gone to the quarterly court, and that the judgment of the circuit court reversing the judgment of the justice's court ought to be reversed by this court. The opinion of this court is to the effect that the circuit court would have had original jurisdiction of the matter in contest, and if the appellant did not move to dismiss, or otherwise object to the jurisdiction of the court, but consented to a submission and trial of the case, he therefore could not in this court be heard to raise the question of jurisdiction. It seems manifest that if the appellant had objected to the jurisdiction of the circuit court upon appeal, and moved to dismiss it, and if the circuit court had overruled the motion, this court would, upon appeal, have reversed the judgment of the circuit court. In Fidler v. Hall, 2 Metc. 461, this court expressly held that, where the inferior court had no jurisdiction of the action, an appeal therefrom to a superior court should be...