Hopkins v. Wilson, 38387

Citation212 Miss. 404,54 So.2d 661
Decision Date01 November 1951
Docket NumberNo. 38387,38387
PartiesHOPKINS v. WILSON.
CourtUnited States State Supreme Court of Mississippi

Joe W. Hopkins, J. L. Roberson, S. H. Roberson, Ross & Ross, Clarksdale, for appellant.

Stovall Lowrey, Holcomb & Curtis, Clarksdale, for appellee.

LEE, Justice.

J. B. Hopkins and J. Van Wilson were candidates for the office of supervisor of the First District of Coahoma County in the primary election on August 7, 1951. There are two precincts in that district, namely, Lula and Rich. According to the reports of the managers of the election, each candidate received 116 votes. The executive committee, on its canvass of the returns, found that Wilson received 117 votes and Hopkins 116, and declared Wilson to be the nominee.

Hopkins, thereupon proceeding under Section 3143, Code 1942, filed his contest with the committee, setting up his several grounds of contest. Seasonably Wilson filed his answer and cross petition. However, no action on the contest was ever taken by the committee.

Hopkins, thereupon proceeding under Section 15, Corrupt Practices Act of 1935, Code 1942, Secs. 3182-3188, filed his petition in the circuit court for a judicial review, setting up the same grounds of contest. Wilson filed both a motion to dismiss for want of jurisdiction, and his answer and cross petition. The special court was constituted, and on the hearing, overruled the motion to dismiss, together with several other motions not necessary to mention.

On the trial, at the conclusion of the evidence, oral and documentary, the trial judge made his findings of fact, and dictated them to the reporter. He adjudicated that Wilson had received 117 votes and Hopkins had received 115 votes, and declared Wilson to be the nominee. A decree was entered accordingly and Hopkins appeals here upon his bill of exceptions, which, on order of the trial judge, includes the transcript of the evidence.

On Appellee's Motion to Dismiss

This motion was urged in the lower court and is urged here. The contention is that Section 3182, Code 1942, was not complied with as regards the two certifying attorneys. However, the proof showed that two nephews of one of the certifying attorneys married two nieces of appellant's wife, and that the other attorney is a nephew of one of the lawyers in the partnership representing appellant. Neither of these attorneys was disqualified on account of the stated relationships, and the evidence was ample, in all respects, to sustain the action of the trial judge in overruling the motion. Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 11 A.L.R. 1321; Shireman v. Wildberger et al., 125 Miss. 499, 87 So. 657; McLendon v. State, 187 Miss. 247, 191 So. 821; Harris v. Stewart, 187 Miss. 489, 193 So. 339.

On the Merits

Several points are assigned and argued by the appellant, and we shall deal with as many of them as we deem to be necessary.

(1) The vote of Mrs. J. C. Irvine. The objection by the appellant was that this item was a new matter; that it was not referred to in the answer filed with the executive committee; and that it could not be brought up before the special tribunal. However, appellee made no proof on this matter, and the finding of the trial judge, and his decree thereon, show that this vote was not considered by the court at all. Thus no harm could have resulted in the failure to strike the allegation.

(2) As to the Hamblett vote, the Mrs. Russell I. Arnold vote, the G. F. McMullin vote, the X marked ballot, and the blotted or ink splotched ballot, without detailing the facts, it is sufficient to say that, in our opinion, the trial court was correct in his decision of all of these matters.

(3) The absentee ballots of Mr. and Mrs. R. W. Donaldson. These ballots were for appellant, but were not counted by the trial judge, on account of which appellant claims error. R. W. Donaldson was born in Texas in 1925 and lived there until 1943, when he enlisted in the Navy. He was sent to Millsaps College, in V-12 training, until November 1945. There he met Frances Ashley of Rich, Mississippi, whom he married on May 12, 1945. In June 1946 he reported for active duty aboard ship. He was discharged in 1947 and came, as he says, 'home to Rich'. He attended summer school at the University of Oklahoma, and returned to Millsaps in the fall of 1947, from which institution he was graduated on June 1, 1948. He was exempt from examinations and spent the two weeks immediately prior to obtaining his diploma by working in the crops at Rich. About June 15, 1948, he accepted a temporary job with California Oil Company at Natchez and has since worked for that company. He was working 40 hours, and went to Rich on weekends while his wife was nursing her mother. He had made up his mind in 1946 that he was going to make Rich his permanent home. On his discharge from the Navy, he gave Rich, Mississippi, as his address. His wife registered there on March 12, 1949; and he likewise registered January 14, 1950. Both paid poll taxes for 1949 and 1950 in Coahoma County. They lived at Natchez in rented quarters. They operated a small grocery because it was in the same building with their apartment, and they would have been required to move, if it had been rented to someone else. They never registered anywhere else. They never offered to vote anywhere else. Of course they did not pay poll taxes elsewhere. Their surplus clothing and personal effects are kept in the home at Rich, in which Mrs. Donaldson is interested, and no one else uses their living quarters.

Domicile of choice requires residence and the intent to remain. When these concur the domicile is established. 28 C.J.S., Domicile, Sec. 9, p. 11. See also 17 Am.Jur. 603.

In May v. May, 158 Miss. 68, 130 So. 52, in a divorce action, it was held that where a domicile is once acquired it is presumed to continue, and the burden of proving the contrary is on the party alleging it. See also 28 C.J.S., Domicile, Secs. 9, 10, 11 and 12; Smith v. Deere, 195 Miss. 502, 16 So.2d 33.

We think that, subsequent to the time of his determination in 1946 to make his permanent home at Rich, the voter, by his acts, established his domicile at that place; and his temporary absence, in view of his intention to return, did not change his domicile. See 28 C.J.S., Domicile, Sec. 11, p. 18.

Manifestly these parties were qualified electors of the precinct of Rich, and their ballots should have been counted for the appellant.

(4) Three ballots for appellee marked with pencil. Appellant charged in his contest that three ballots, marked with pencil, were...

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5 cases
  • Southern v. Glenn
    • United States
    • Mississippi Supreme Court
    • October 3, 1990
    ...and further of persuading the court that the evidence preponderates to that effect. See Newman v. Newman, supra; Hopkins v. Wilson, 212 Miss. 404, 420, 54 So.2d 661, 663 (1951); Jones v. State ex rel. McFarland, 207 Miss. 208, 213, 42 So.2d 123, 125 (1949); Bilbo v. Bilbo, 180 Miss. 536, 55......
  • Newman v. Newman
    • United States
    • Mississippi Supreme Court
    • February 21, 1990
    ...domicile and further the burden of persuading the trier of fact that the evidence preponderates to that effect. Hopkins v. Wilson, 212 Miss. 404, 420, 54 So.2d 661, 663 (1951); Bilbo v. Bilbo, 180 Miss. 536, 550, 177 So. 772, 776 (1938); Clay v. Clay, 134 Miss. 658, 662, 99 So. 818, 818 Ser......
  • Tedder v. Board of Sup'rs of Bolivar County
    • United States
    • Mississippi Supreme Court
    • June 9, 1952
    ...choice. The challenged ballot of William H. Allen was properly counted by the circuit court under such cases as Hopkins v. Wilson, 1951, 212 Miss. 404, 419-420, 54 So.2d 661. With reference to the other group of challenged votes, the circuit court correctly allowed the vote for the bond iss......
  • Starnes v. Middleton, 40072
    • United States
    • Mississippi Supreme Court
    • December 5, 1955
    ...sound and supported by substantial evidence. McHenry v. State ex rel. Rencher, 1919, 119 Miss. 289, 80 So. 763; Hopkins v. Wilson, 1951, 212 Miss. 404, 54 So.2d 661, 924. Nor was there any error in the refusal of the Special Tribunal to count for Starnes the ballot designated as contestee's......
  • Request a trial to view additional results

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