Hilliard v. Brown

• Citation: 15 So. 605,103 Ala. 318
• Parties: HILLIARD v. BROWN ET AL.
• Decision Date: 17 May 1894
• Court: Supreme Court of Alabama

15 So. 605

103 Ala. 318

HILLIARD v. BROWN ET AL.

Supreme Court of Alabama

May 17, 1894

Appeal from circuit court, Pike county; John R. Tyson, Judge.

Action by W. J. Hilliard against T. H. Brown and others on a bond. From a judgment for defendants, plaintiff appeals. Reversed.

This was an action brought by the appellant against T. H. Brown and his sureties on a bond for costs to recover the costs incurred in the proceeding instituted by the said T. H Brown, contesting the election of said W. J. Hilliard to the office of probate judge for Pike county. The cause was submitted to the jury upon an agreed statement of facts which was as follows:

"It is agreed in this case: That defendant T H. Brown instituted a contest, otherwise known as a 'statutory contest,' against the plaintiff, W. J. Hilliard, before Hon. John P. Hubbard, circuit judge, to wit, the 17th day of August, 1892, and gave the following bond or written instrument:

"'The State of Alabama, Pike County. Whereas, T. H. Brown, an elector of the county of Pike, in said state, has this day filed in the office of the clerk of the circuit court of said county his grounds of contest of the election of W. J. Hilliard to the office of judge of probate of said county at an election held on the 1st day of August, 1892: Now, therefore, we, the undersigned, hereby acknowledge ourselves to be bound as security for the cost of said contest. In witness whereof, we have hereunto set our hands and seals this 17th day of August, 1892. T. H. Brown. W. A. McBryde. O. R. Dykes. L. M. Treadwell. J. P. Wood. O. C. Wiley.

"'Approved August 17th, 1892. O. Worthy, Clerk.'

-As security for the costs of said contest, and as an initiatory step for the commencement of said contest. That on the trial of said contest, before said circuit judge, Hubbard, to wit, during the month of September, 1892, a judgment was rendered in favor of said Brown, and against said Hillard, for said office of probate judge. That thereupon said contestee, Hilliard, appealed from said judgment of the said circuit judge to the supreme court, when and where a judgment was rendered quashing and dismissing said contest proceeding, the supreme court deciding that the circuit judge was without jurisdiction to try the cause, for and upon the grounds disclosed in and by the petition in that case. That none of the costs sued for in the present action, as particularly set forth in the following cost bill offered in evidence [here follows the bill of costs which was incurred in the said proceeding, and which included the cost of preparing the transcript for the supreme court] were incurred by said Hilliard, and no part thereof has ever been paid, or assumed to be paid, by him. The clerk's fees, $106.55 (except an item for cost of making transcript in said contest case to the supreme court), were incurred in said contest at the instance of the contestant, Brown. That the sheriff's fees, $49.44, were incurred by said contestant in like manner. That the witnesses' fees, $260.35, were and are due exclusively to persons subpoenaed by said contestant as witnesses in his behalf; and so, also, the commissioners' fees were for work and labor done and services rendered by a person named and selected by contestant, and appointed at his instance, in taking the depositions of certain witnesses for contestant, Brown. And that none of the parties interested in said costs ever requested or authorized said plaintiff, Hilliard, to commence this action."

The agreed statement of facts also contained a copy of the judgment rendered by the supreme court in the said contest case on January 3, 1893, and which declared: "That in the proceedings before the circuit judge there was manifest error, and that the prayer of the petitioner be, and the same is hereby, granted, and that the said proceeding be, and the same is hereby, quashed. It is also considered that the respondent T. H. Brown pay the costs herein taxed." It was also stated in said agreed statement that the costs had never been paid by any one.

Upon this evidence the plaintiff requested the court to give the general affirmative charge in his behalf. This the court refused to do, and to such refusal the plaintiff duly excepted, and also excepted to the court's giving, at the request of the defendant, the following written charge: "If the jury believe the evidence, they will find for the defendant." There was judgment for the defendant, and the plaintiff appeals, and assigns as error the refusal to give the general affirmative charge in his behalf, and the giving of the charge requested by the defendant.

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