Gregory v. Gordon, 5--4386
| Decision Date | 04 December 1967 |
| Docket Number | No. 5--4386,5--4386 |
| Citation | 420 S.W.2d 825,243 Ark. 635 |
| Parties | E. E. GREGORY et al., Appellants, v. Court GORDON et al., Appellees. |
| Court | Arkansas Supreme Court |
William M. Lee, Clarendon, and George E. Pike, DeWitt, for appellants.
Coleman, Gantt, Ramsay & Cox, Pine Bluff, for appellees.
This is an action to invalidate the result of an election in Arkansas County which imposed a one mill tax on real and personal property to be used for the maintenance of a public library. The tax issue was submitted at the General Election held on November 8, 1966.
No testimony was introduced before the trial court, and the essential facts presently set out are either undisputed or were stipulated by the parties.
(a) The tax issue was not presented to the voters in Stuttgart because that City had already voted a tax to maintain a municipal library.
(b) A 'proper' ballot, as prescribed by the Election Commissioners, should have been printed in this form:
FOR a one mill tax on real and personal property to be used for maintenance of a public county library or county library service or system. (followed by a 'box' to be used by the voter to indicate his choice.)
AGAINST (followed by the same words and 'box' that follows 'FOR' above).
(c) Some of the printed ballots were 'proper' and some had no 'box' after 'AGAINST' and also omitted the word 'system'. These ballots will be referred to as 'defective' ballots.
(d) 'Proper' ballots were distributed to all 'absentee' voters and to one voting precinct.
(e) 'Defective' ballots were distributed to the other twenty one voting precincts.
(f) The compilation of the votes (under supervision of the trial judge) reflects:
--For the tax 1506,
--Against the tax 1035, and
--Not voting 1540.
On December 9, 1966 Court Gordon and others (residents and property owners of Arkansas County), appellees, filed a complaint in circuit court against E. E. Gregory, et al. (Election Commissioners), appellants, alleging in substance that the use of 'defective' ballots 'operated as an obstruction to the free and intelligent casting of the vote' and created 'a doubt as to how the election would have resulted if the ballots had not been defective'. The prayer was, in essence, that 'the said one mill tax be set aside' as 'void and illegal'. Appellants entered a general denial.
Following a hearing on the issue raised the trial court entered a judgment, holding: The relief sought by plaintiffs (appellees) is granted; the one mill tax is hereby set aside and held for naught, and; the one mill tax on real and personal property in Arkansas shall not be assessed.
For a reversal appellants make two contentions: One, the suit was not filed in time; Two, the 'defective' ballots did not affect 'the free and intelligent casting of the vote'.
One. It is here contended by appellants that the case must be reversed because appellees failed to comply with Ark.Stat.Ann. § 3--814 (Repl.1956), but we see no merit in this contention.
The mentioned section, in material parts, reads:
'Whenever it shall appear by affidavit that an error or omission has occurred * * * in the printing of ballots, the Circuit Court * * * shall, upon the application of any elector, by order, require the County Election Commissioners to immediately correct such error * * *.'
It is admitted by appellants that appellees' complaint was filed within the thirty day period provided by law. The answer filed by appellants, in material part, reads:
'The defendants deny each and every allegation contained in the complaint of the plaintiffs and the amendments thereto.'
As previously stated, no oral testimony was introduced. Consequently it definitely appears from the record that the matter of an 'affidavit' was not raised by appellants in the answer or in the facts stipulated by the parties.
This Court has many times held that an objection not raised in the trial court cannot be raised for the first time on appeal. This rule is particularly applicable here. If the matter of an 'affidavit' had been raised in the trial court or in the stipulations appellees might have been able to supply the same. This Court does not know, and will not presume, appellees could not have done so.
Two. The other point relied on by appellants is stated as follows:
'Errors...
To continue reading
Request your trial
- United Equitable Ins. Co. v. Karber, 5--4384
-
McCoy v. State
...incarceration. The absence of an objection precludes appellant from raising the point for the first time on appeal. Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967). Finding no reversible error, the case is ...
-
Nichols v. State
...consistent in holding that such a lapse forecloses our review of the matter on appeal. See Ferrell v. State, supra; Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967). IV. INSTRUCTION ON CONSTRUCTIVE The appellant also argues that the instruction given to the jury on constructive posses......
-
Vaughn v. Morris, CA
...the transcript indicates that this argument was never raised in the trial court and cannot be considered on appeal. Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967). Appellees argue on cross appeal that they are entitled to pre-judgment interest. Although appellees-cross appellants as......