Hardy v. Russell

• Decision Date: 21 June 1918
• Citation: 181 Ky. 287
• Parties: Hardy v. Russell. Felts v. Edwards. Bailey v. Stuart.
• Court: Kentucky Court of Appeals

181 Ky. 287

Hardy v. Russell.

Felts v. Edwards.

Bailey v. Stuart.

Court of Appeals of Kentucky.

Decided June 21, 1918.

Appeals from Logan Circuit Court.

COPYRIGHT MATERIAL OMITTED

PROCTOR & GARDNER, W. R. GARDNER, B. F. PROCTOR and J. U. WADE for appellants.

BROWDER & BROWDER, S. R. CREWDSON and E. COLEMAN TAYLOR for appellees.

OPINION OF THE COURT BY JUDGE HURT — Affirming in each case.

These appeals, which have heretofore been ordered to be heard together, are from the judgments, of the Logan circuit court, determining the contests of election to the office of county judge, county clerk and sheriff, respectively, in favor of the appellees. The pleadings, steps, motions, grounds of contest and counter contest, as well as the evidence is substantially the same, in each action, the differences being the names of the parties, and the number of the votes received by each party respectively. Preliminary to the submission of the causes upon their merits, two motions were made in this court, in each of the causes, by the appellees, respectively, and these motions were passed for hearing to the final submission and will now be disposed of.

(1) The appellees in each of the causes made a motion to dismiss the appeal, upon the ground that the appellant had failed to execute the bond required by section 1596a, subsection 12, Ky. Stats. The statute, supra, so far as it pertains to the question in hand, provides:

"Either party may appeal from the judgment of the circuit court to the Court of Appeals, by giving bond to the clerk of the circuit court, with good surety, conditioned for the payment of all costs and damages the other party may sustain by reason of the appeal, and by filing the record in the clerk's office of the Court of Appeals within thirty days after final judgment in the circuit court."

The appellants within thirty days after the final judgment appealed from, executed bond, conditioned as an ordinary supersedeas bond, with sureties and filed the record in the office of the clerk of this court. In each case, the appellant executed the bond to the appellee and before the clerk of the circuit court. One of the conditions of the bonds is, that, the appellant will pay to the appellee all costs and damages, which the appellee will sustain by reason of the appeal. The appellees being now in the custody of the offices over which the contests were made, all the costs or damages, which the appellees could sustain by reason of the appeal, if the judgment should be affirmed, is the cost which he will have to pay by reason of the appeal. Hence, the covenants of the bond seem to be sufficient to protect all the rights of the appellees. The bond is not defective, as was the bond in Galloway v. Bradburn, 119 Ky. 49, as, in that case, the covenants, in the bond, were insufficient to protect the rights of the appellee, in the event of the affirmation of the judgment. The contention is made for the appellees, however, that the bond is fatally defective, in that the bonds are executed to the appellees, instead of to the clerk of the circuit court. It will be observed, that the statute does not provide, that the execution of the appeal bond shall be, in any wise, for the benefit of the clerk or that anything shall be secured to him or redound to him, in any way, by reason of its execution. It is required to be executed, solely, for the benefit of the appellee and to secure him in the satisfaction of any costs or damages, which he may sustain by reason of the appeal. The correct construction of a statute, always, is, to ascertain the intention of the legislature in enacting it and to declare such intention. Trustees v. City, etc., 97 Ky. 702; Day v. Brooks, 8 R. 429; Board, etc. v. Fiscal Court, etc., 106 Ky. 608; Grinstead v. Kirby, 33 R. 287. To ascertain the intention of the legislature, it is proper to look to the purpose, which it had in view in enacting the statute, the subject matter and the entire context of the statute and the consequence of its enactment. Com v. Trent, 117 Ky. 34. The general rule of interpretation is, that effect must be given to every word in a statute, but where the object of the legislature is plain and its intent can be ascertained with certainty from the entire context, and it is apparent from the context, that a word has been inadvertently or carelessly used, the purpose and intent of the legislature will not be allowed to be defeated by the inadvertence, but the word intended will be substituted for the one used, if it is necessary to give effect to the purpose and intent of the legislature, as gathered from the entire statute. Bird v. Board, etc., 95 Ky. 195; Mason v. Rogers, 4 Litt. 376; Phillips v. Pope, 10 B. M. 172; Williams v. Com., 78 Ky. 93; Mercer County Court v. Galbert, 5 Bush 446; L. & N. R. R. Co. v. Com., 97 Ky. 675; Com. v. Reynolds, 89 Ky. 147 It is very plain, that, the purpose and intention of the legislature was to require a bond to be executed by one, who appeals a case involving a contest for the right to hold an office and to receive its emoluments, which will be for the benefit of the appellee and will insure, that he shall be paid any costs or damages, which he shall sustain by reason of the appeal, and hence, that, it was the purpose and intention of the legislature that the covenants of the bond should be made to the appellee, who is the sole person in interest. It was necessary to designate some person, before whom the bond should be executed and who should have authority to accept same and for such reason, alone, the clerk was designated. Hence, the word "to" preceding the word "clerk" was manifestly inadvertently or carelessly used, when the word "before" was intended and should be substituted for it. The motion to dismiss the appeals for a failure to execute the appeal bond to the proper person and at the proper time is therefore overruled.

(2) The motions to strike out of the records the amended petitions, copied therein, by the clerk must, also, be overruled. It is urged, that, this motion should prevail because the records only show that an amended petition was offered, in open court, in each of the causes, and the court refused to permit it to be filed, and that there was no order of the court, which identified the amended petitions, copied into the records, as the ones offered and refused, and for that reason they can not constitute any part of the respective records. The action of the trial court in refusing to permit a pleading to be filed can not be reviewed, of course, by this court, unless the pleading is made a part of the record by a bill of exceptions or by an order of the court, which will designate it, as the one offered and refused. Young v. Bennett, etc., 7 Bush 474; Noland v. Feltman, 12 Bush 119; Jett v. Farmers Bank, 25 R. 817; Mitchell v. New Farmers Bank, 22 R. 1291; Dudley v. Herring, 30 R. 27; Oldham v. Brown, 4 Bibb 544. Neither the orders of the court setting out the motions to file amended petitions, nor the orders overruling the motions, designates the amended petition offered to be filed and refused, as the one, which is copied into the record. Neither can the action of the trial court in refusing to allow the amended petition, which was offered and refused, be reviewed, as in the absence of the pleading offered, it can not be assumed, that the ruling of the court was not correct.

(3) The trial court struck from the files of the case an amended petition which was filed with the clerk, in vacation on the 14th day of January, 1918, and the appellants insist that this was erroneously done and that they were entitled to the benefit of the averments therein, upon the trial below and here. To determine the soundness of this contention it will be necessary to make a review of the state of the pleadings. The petitions were each filed on the 17th day of November, 1917 The answers were filed on December 7th, thereafter. The replies were filed on December 15th, thereafter. The appellants alleged in their petitions, together with other grounds of contest, that ninety-six illegal votes had been cast and counted for their opponents in the Keysburg precinct. The names of the persons who cast these votes were fully set out, but no facts were alleged, which showed why the votes were illegal and in this the petitions were defective. It was, also, alleged, that the election, in Keysburg precinct, was so irregular, that it did not amount to an expression of the will of the legal voters therein; that the voting was without secrecy; the booths had neither doors nor curtains, and that one hundred persons had voted there in such a way as to expose their ballots to the clerk and other officers of the election, who knew for whom the ballots were cast, and for that reason the vote of the entire precinct should be eliminated. It was further alleged, that the appellees each failed to comply with the statute, against corrupt practices, in elections, in that they had failed to file with the chairman of the board of election commissioners a statement of their respective expenditures in the election fifteen days before the election and had, also, failed to file the required statement after the election, as required by section 4, chapter XI, Session Acts 1916. When the appellees filed their answers, they filed with them a motion to require appellants to make more specific the allegations of their petitions, and a general demurrer to the petitions, as a whole, and to each paragraph of them. Thereafter, on the 14th day of January, 1918, the appellants each filed in the office of the clerk of the court, the court being then in vacation, amended petitions, by which they cured the defects in the paragraphs of the original petitions with reference to the Keysburg precinct and, also, some additional, but immaterial, averments with reference to the failure of the appellees to file the statements of their election expenditures, as required by law against corrupt...