Edwards v. Williams, 5-2673

• Decision Date: 30 April 1962
• Docket Number: No. 5-2673,5-2673
• Citation: 234 Ark. 1113,356 S.W.2d 629
• Parties: Moore EDWARDS, Appellant, v. J. L. WILLIAMS, Appellee.
• Court: Arkansas Supreme Court

Page 629

356 S.W.2d 629

234 Ark. 1113

Moore EDWARDS, Appellant, v. J. L. WILLIAMS, Appellee.

No. 5-2673.

Supreme Court of Arkansas.

April 30, 1962.

Guy H. Jones and Francis T. Donovan, Conway, for appellant.

Clark, Clark & Clark, Conway, for appellee.

ROBINSON, Justice.

Appellant, Moore Edwards, and J. L. Williams were opposing candidates for the office of Committeeman of the Democratic Party for Cypress Township, Faulkner County, in the Democratic primary held July 26, 1960. They each received 64 votes. Williams was the incumbent committeeman and accordingly would hold office until his successor was certified as being elected.

Edwards filed this suit to contest the outcome of the election alleging that certain illegal votes were cast for Williams. A pleading designated 'Answer and Cross Complaint' was filed by Williams denying the allegations of the Complaint and alleging that certain illegal votes were cast for Edwards. Appellant filed a motion to dismiss the so-called 'Cross Complaint' because the pleading was not verified. The trial Court overruled the motion and appeallant has made the Court's action in that respect one of his points on appeal.

Ark.Stats. § 3-245 requires that the Complaint in an action of this kind be verified. There is no requirement for verification of the Answer. Although the document in question is styled 'Answer and Cross Complaint' it is nothing more than an Answer asserting defenses to the Complaint. McLain v. Fish, 159 Ark. 199, 251 S.W. 686, is directly in point. There the Court said: 'Appellant filed a motion to strike out the affirmative allegations of the answer with respect to charges of illegal voting, on the ground that these allegations constituted a cross-complaint and that such an attack could not be filed except within 10 days after the date of the certificate of nomination and must be supported by the affidavits of 10 qualified electors. The court overruled the motion, and appellant saved his exceptions. * * * A contestee, for the purpose of raising issues of fact concerning the true result of an election, may present new matter without being required to comply with the statute with respect to the time and manner of instituting the contest. Our conclusion is therefore that the point made by appellant cannot be sustained.'

The parties stipulated in the trial court that appellant, Edwards, challenged only seven votes cast for appellee, Williams, and that Williams challenged only five votes cast for Edwards. After considering all the evidence, the trial court ruled that appellant received 58 valid votes and appellee received 61 such votes. On appeal appellant argues that the trial court erred in holding invalid the votes of Donnell Russell, Mrs. Donnell Russell, James Bradley, Mrs. James Bradley, Mrs. E. R. Wilson and Mrs. Alvin Tanner and that the Court erred in holding valid the vote of Edna Louise Wilson.

The trial court found that Mr. & Mrs. Donnell Russell were not residents of Faulkner County at the time of the election held on July 26, 1960; that the Russells had moved from Faulkner County on June 3rd or 4th. Mr. Russell was asked: 'Q: How long have you been in Little Rock? Since about the 4th of June? A: Yes. The 4th of June is when we moved in.' It is clear from Russell's testimony that he moved to Little Rock in Pulaski County on June 4th and that he and his wife were not residents of Faulkner County at the time of the election.

In Wilson v. Luck, 203 Ark. 377, 156 S.W.2d 795, 799, the Court said: 'Section 1, of art. III, of the Constitution, prescribing the qualifications of electors, requires that the elector 'has resided in the State twelve months, and in the county six months, and in the voting precinct or ward one month, next preceding any election, where he may propose to vote, * * *.' If he has thus resided, then he (and, now, she, also) 'shall be entitled to vote at all elections by the people.' This requirement, as to residence, is, of course, mandatory, and requires the elector to vote in the precinct or ward in which he resided for one month next preceding the election, and not...