Dryden v. Swinburn

• Citation: 15 W.Va. 234
• Parties: DRYDEN v. SWINBURN.
• Decision Date: 10 May 1879
• Court: West Virginia Supreme Court

15 W.Va. 234

DRYDEN v. SWINBURN.

Supreme Court of West Virginia.

May 10, 1879

J. D gave to T. S. the following notice under the 30th section chapter 118, of the Acts of 1872-3:

" To T. S.:

Your are hereby notified, that I shall contest before the county-court of Kanawha county, West Virginia, your election as clerk of the circuit court of said county of Kanawha, at the recent election held in said county on the 8th day of October, 1878, upon the ground that at the time of said election you were not, and never had been entitled to vote in said State, and by the express provisions of the Constitution of said State you could not be elected to said office at said election; and that I shall there resist and contest your right to hold said office or perform the duties thereof, and shall there claim to be myself duly and legally elected to said office at said election. You are further notified, that I shall docket this notice on the 1st day of November, 1878 if the court then be in session, and if not in session, then the 1st day of December term, 1878, of said court.

17th of October, 1878.

J D."

This notice was sworn to and served on October 19, 1878. It was docketed on November 1, 1878, the October term of the said court having continued to that time. The court dismissed the notice, holding it had no jurisdiction to try it. A writ of certiorari was issued on November 5, 1878, by order of the circuit court made on a petition therefor by J. D sworn to and accompanied by a copy of the record, without any previous notice of the application for the writ being given to T. S., and without any rule to show cause against its being granted. But T. S. was by order of the court summoned to answer it, when the county-court had responded to the certiorari. On the hearing, the circuit court reversed, set aside and annulled the judgment of the county-court and retained the case for trial in the circuit court.

HELD:

1. The notice was sufficient, it not being necessary, when the ground of the contest was only the want of qualification to hold the office by the party returned as elected, to furnish with it a list of votes to be disputed, nor to state facts showing that the person giving the notice was entitled to the office. It is sufficient that the notice should show he was a candidate for the office at the election, and set forth the facts on which he based his objections to his opponent holding the office.

2. The court had jurisdiction of the case, though the notice was returnable to a day of the court during its October term, the 32d section of said act, chapter 118 of Acts of 1872-3, not requiring the notice to be returnable to a day during the November term of the court or the next term held after November; this section only directing when the case was to be tried, and not when it should be docketed.

3. The circuit court properly granted the certiorari on a petition accompanied by a copy of the record and sworn to though no previous notice had been given to the opposite party and no rule to show cause why the writ should not be awarded had been given. The giving of such notice and the awarding of such rule being a matter within the discretion of the court, and this discretion was properly exercised in this case

4. The circuit court did not err in reversing, setting aside and annulling the order of the county-court dismissing the notice as one over which they had no jurisdiction.

5. The circuit court did not err in retaining the cause for trial, as it has no right to try de novo any case brought before it by certiorari to the judgment of a county-court, the 22d section of chapter 17 of Acts of 1872-3, directing the retention of cases in the circuit court applying only to cases brought before it by appeal, writ of error or supersedeas.

6. The circuit court ought to have annulled the order of the county-court and remanded the cause to the county-court to be proceeded with and tried.

7. In all cases of certiorari, when used as an appellate proceeding, the superior court has a right to affirm the judgment of the inferior court, or to set aside and annul it and enter up such judgment as the inferior court ought to have done, or remand the cause to it as in a case brought up on writ of error.

8. The judgment of a county-court may be brought up for review in the circuit court in a proper case of writ of certiorari; but under our statutes the proper mode of bringing up any judgment or order of a circuit court in controversy between parties for review by the Supreme Court of Appeals, where such judgment or order is not in a chancery proceeding, is by writ of error.

9. The record showing that the office of the clerk of the circuit court of Kanawha county is of greater value than one hundred dollars, the Supreme Court of Appeals has appellate jurisdiction by writ of error to review the decision of the circuit court in such a case.

10. When the cause is remanded to the county-court for further proceeding, as it should be, they have a right to try and decide the same, though such trial be necessarily had after the time limited for the qualifying of the clerk; the direction contained in the 32d section of said act not to continue the case beyond that time not preventing the plaintiff from having such trial.

Writ of error and supersedeas to the judgment of the circuit court of Kanawha county rendered on the 20th day of December, 1878, in a proceeding on a writ of certiorari in said court then pending, wherein John Dryden was plaintiff and Thomas Swinburn was defendant, awarded on the petition of the said Swinburn.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

GREEN, PRESIDENT, furnishes the following statement of the case:

This is a case of contested election under the provisions of chapter 118 of the Acts of 1872-3. On October 19, 1878, John Dryden, who had been a candidate for clerk of the circuit court of Kanawha county at the preceding election, had served on Thomas Swinburn, who had been declared elected by the commissioners to this office, a notice of a contesting of his election as clerk of the circuit court of Kanawha county. The notice was as follows:

" To THOMAS SWINBURN, ESQ.:

You are hereby notified that I shall contest before the county court of Kanawha, West Virginia, your election as clerk of the circuit court of said county, at the recent election held in said county on the 8th day of October 1878, upon the ground that at the time of said election you were not, and never had been, a citizen of the United States, or of the State of West Virginia, and were not at the time of said election, and never had been entitled to vote in said State, and by the express provisions of the Constitution of said State, you could not be elected to said office at said election; and that I shall there resist and contest your right to hold said office, or perform the duties thereof, and shall there claim to be myself duly and legally elected to said office at said election. You are further notified, that I shall docket this notice, and insist upon the trial thereof, in the county-county of Kanawha county on 1st day of November, 1878, if the court be then in session, and if not in session, the 1st day of December term, 1878, of said county-court.

JOHN DRYDEN.

17th of October, 1878."

The facts set forth in this petition were sworn to as true by John Dryden, as appears by an affidavit at the foot thereof. On the 1st day of November, 1878, the following entry was made in this case by the county-court of Kanawha county:

" JOHN DRYDEN, )

vs. ) On notice to contest an election.

THOMAS SWINBURN. )

This day came the plaintiff by his attorneys, and it appearing to the court that the defendant has been duly served with a copy of said notice, on the plaintiff's motion it is ordered that the said motion be and the same is now docketed; and thereupon the defendant, by counsel, demurred to the jurisdiction of the court in this cause, in which demurrer the plaintiff joined; and the questions of law arising on said demurrer being argued and submitted to the court, the court is of opinion to sustain said demurrer and the same is sustained accordingly. It is therefore considered by the court that said notice be dismissed, and that the defendant recover of the plaintiff his costs by him about his defense in this behalf expended, including $10.00 as allowed by law."

On November 5, 1878, John Dryden filed his petition in the circuit court of Kanawha county, praying that the court would award him a writ of certiorari, to bring into that court the record and proceedings in this case, and when brought there that its errors be corrected, and the order sustaining the demurrer and dismissing the notice be vacated and that the circuit court would either hear and determine the case, or remand it to the county-court to hear and determine the same on correct principles. The errors in this order of the court, as deemed to exist by the plaintiff, are pointed out in detail in this petition; and among other reasons for claiming that this order was erroneous the petition states, that if the construction claimed for chapter 118, Acts of 1872, and chapter 11 of Acts of 1877, and acted on by the county-court be correct, the case could not be tried in November, because the term of the county-court did not commence in that month, but in October; and it could not be tried at the next or any subsequent term of the court, because the next term commenced on the third Monday in December, 1878, which was more than sixty days after the declaration of the election of Swinburn, and the case must by law be decided within these sixty days. The inference drawn is that the county-cou...