Franklin v. Kaufman

Decision Date28 February 1880
Citation65 Ga. 260
PartiesFranklin. v. Kaufman et al.
CourtGeorgia Supreme Court

*Certiorari. Justice of the Peace. Constable. Election. County matters. Office. Before Judge Fleming.

Chatham Superior Court. May Term, 1879.

Reported in the opinion.

A. P. & S. B. Adams, for plaintiff in error.

J. J. Abrams, by brief, for defendants.

CRAWFORD, Justice.

At a constable's election for the third militia district of Chatham county, the parties to this suit were the candidates; Kaufman and Endres receiving the largest number of votes, the election was contested before the county commissioners who were empowered to issue the certificates of election. The commissioners, after hearing the evidence, decided that the election was legal and valid and that Kaufman and Endres were elected. Franklin, the contestant, sued out a writ of certiorari and carried the case to the superior court, alleging that the court committed error in holding that the election was legal and valid, and in not declaring otherwise and ordering a new election.

Exceptions were filed to the answer of the commissioners to the petition for certiorari, which were overruled by the court and the plaintiff excepted. Upon the hearing of the certiorari itself, upon the grounds of complaint and the answer, it was sustained, the decision of the commissioners reversed, the election declared illegal, that a vacancy existed and that the power to appoint was in the magistrates of the district. The plaintiff in error excepted to so much of the judgment as ruled that a vacancy existed and that the magistrates had the power to appoint.

1. We have in this case but two questions made for ourdecision, the first is, was the judge right in overruling the *exceptions to the answer of the commissioners, which was that it did not specifically reply to the allegationsmade in the petition for certiorari. The law is clear and positive that this shall be done by the officers of the lower judicatory, and it is equally clear and positive that where it is not done, in order to entitle the excepting party to avail himself of a fuller and more perfect response to the allegations set out, he must comply with the law as defined in § 4062 of the Code, which declares that exceptions to the answer shall be filed in writing specifying the defects and notice thereof given to the opposite party. In this case the defects were not specified, and the ruling of the court thereon was therefore not erroneous.

2. The second...

To continue reading

Request your trial
10 cases
  • Dial v. Hollandsworth
    • United States
    • West Virginia Supreme Court
    • March 19, 1894
    ...preside at a constable's election. He acted part of the day, as did the lawful clerks in our case. The election was held void. Franklin v. Kaufman, 65 Ga. 260. See, as to who are officers de jure and de facto, and usurpers: Monteith v. Com., 15 Grat. 172; Griffin v. Cunningham, 20 Grat 31; ......
  • Dial v. Hollandsworth
    • United States
    • West Virginia Supreme Court
    • March 19, 1894
    ... ... He acted ... part of the day, as did the lawful clerks in our case. The ... election was held void. Franklin v. Kaufman, 65 Ga ... 260. See, as to who are officers de jure and de facto, and ... usurpers: Monteith v. Com., 15 Grat. 172; ... Griffin v ... ...
  • Ford v. Toomer
    • United States
    • Georgia Supreme Court
    • December 12, 1902
    ... ... specifying in writing the defects in the answer, and as to ... giving due notice to the opposite party. Franklin v ... Kaufman, 65 Ga. 260. As no effort was made in the ... present instance to comply with the provisions of this ... statute, and as the answer ... ...
  • Ferguson v. Wolchansky
    • United States
    • Arkansas Supreme Court
    • April 15, 1918
    ...Pl., § 418. There was no election under act 55 Acts 1917, pp. 233-4. Plaintiffs are the legal directors. 23 Am. St. 51; 83 Am. Dec. 751; 65 Ga. 260, 2. It was error to sustain the demurrer. The court should have waited for proof as to whose fault it was that the election was not held. 75 In......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT