Hargett v. Parrish
| Decision Date | 15 April 1897 |
| Parties | HARGETT v. PARRISH. |
| Court | Alabama Supreme Court |
Appeal from probate court, Franklin county; W. M. Waltrip, Judge.
Election contest by William M. Hargett against William L. Parrish. Pending an appeal from a judgment in favor of contestee, the contestee died, and the vacancy was filled by appointment. Appellant moves to revive the appeal against appointee, and have his name substituted as appellee. Denied.
Kirk & Almon and Bolton & Sevier, for appellant.
Almon & Bullock & Key, for appellee.
Hargett instituted and prosecuted to final judgment, adverse to himself, a statutory contest of Parrish's election to the office of sheriff of Franklin county. The contestant appealed from that judgment to this court, but before the cause came on to be heard here the contestee (appellee) died, and one Hall was appointed by the governor to succeed him in the office of sheriff. Motion is now made to revive the appeal against said Hall, and to substitute his name for that of Parrish in this court; and upon that motion the cause is submitted. The proceeding being purely statutory, no pretense that there could be such revivor or substitution at common law being made, the order sought must find statutory authorization, or it cannot be granted. The statute providing for the contest itself provides that a contest does not abate by the death of the contestant, but contains no provision in respect of the death of the contestee. Section 2600 of the Code provides that "all actions on contracts, expressed or implied, all personal actions, except for injuries to the person or reputation, survive in favor of or against the personal representatives." The present is not an action within the meaning of that section, and, if it were, Hall is not the personal representative of the deceased, Parrish. Section 2603 of the Code is as follows: "No action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue; but the same must, on motion, within eighteen months thereafter be revived in the name of or against the legal representative of the deceased, his successor, or party in interest; or the death of such party may be suggested upon the record, and the action proceed in the name of or against the survivor." The contest of an election is not within this section, since it applies only to cases in which the cause of action survives,...
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State ex rel. Donnell v. Osborn, 37524.
...State v. Francis, 88 Mo. 561; Austin v. Dick, 100 Cal. 199, 34 Pac. 655; Burke v. Perry, 26 Neb. 420, 42 N.W. 402; Hargett v. Parish, 114 Ala. 515; Leslie v. Griffin, 25 S.W. (2d) 920; 20 C.J., p. 57; Toncray v. Budge, 95 Pac. 32. (7) The office of Governor of Missouri does not exist by vir......
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State ex rel. Donnell v. Osburn
...R. S. 1929; State v. Francis, 88 Mo. 561; Austin v. Dick, 100 Cal. 199, 34 P. 655; Burke v. Perry, 26 Neb. 420, 42 N.W. 402; Hargett v. Parish, 114 Ala. 515; Leslie Griffin, 25 S.W.2d 920; 20 C. J., p. 57; Toncray v. Budge, 95 P. 32. (7) The office of Governor of Missouri does not exist by ......
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Gantt v. Brown
...the death of the petitioner or plaintiff therein unless there is a statutory provision for a survival in such action. 1 Cyc. 59; Hargett v. Parrish, 114 Ala. 515. (2) On threshold of each of the three cases is the question of whether or not the Supreme Court has jurisdiction to try a contes......
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Gantt v. Brown
...for a different judgment, the case ex necessitate abates. The views we have expressed find full support in the case of Hargett v. Parrish, 114 Ala. 515, 21 South. 993. In that case Hargett contested the election of Parrish and was unsuccessful below. He appealed, and pending the appeal Parr......