Hudnall v. Fleenor
| Decision Date | 02 October 1945 |
| Citation | 189 S.W.2d 724,300 Ky. 497 |
| Parties | HUDNALL v. FLEENOR. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Butler County; Clarence Bartlett, Judge.
Proceeding by L. V. Hudnall against Chole Fleenor for recount of the votes cast for the parties as candidates for nomination for the office of circuit clerk in a primary election. From an order denying a recount, petitioner appeals. On appellee's motion to dismiss the appeal.
Motion sustained, and appeal dismissed.
Chas. R. Ball, of Bowling Green, for appellant.
Otto C Martin, of Hartford, for appellee.
MORRIS Commissioner.
In the recent primary appellant and appellee were candidates for the Republican nomination for circuit clerk. Upon a canvass the election commissioners certified that appellee had received a majority of the votes cast. Within the time and manner provided by 122.060 appellant requested a recount. The court in conformity with the section, supra, set a day for the recount. The court first took up the question of the integrity of the ballots, and upon hearing a number of witnesses touching thereon, found that from the time the county clerk receipted for the ballot boxes he had had neither their possession, custody nor control, but had turned them over to a janitor, who exercised custody and control.
There was little dispute of the proof on which the order declining to recount was based, and from which ruling this appeal is prosecuted. The record before us shows that the judgment was rendered and entered on August 25, and supersedeas filed on same day; the record was filed in the office of the clerk of this court on September 4, 1945, and appellee moves to dismiss for want of jurisdiction.
Section 122.060 KRS provides: 'Either party may appeal from the judgment to the Court of Appeals * * * by filing the original papers and transcript of orders in the Court of Appeals within ten days after the entry of the judgment.' The right to have a recount is purely statutory, and the provisions must be fully complied with to give this court jurisdiction. Any action brought under the statute is a special proceeding, and the remedy is exclusive. Gross v Ball, 258 Ky. 730, 81 S.W.2d 409; Anderson v Likens, 104 Ky. 699, 47 S.W. 867. The rule is that where the computation is to be made for the act done then the day of the doing of the act must be included, but if the time is computed from a day, the day must be excluded. Louisville City Railway v. Wellington, 137 Ky. 719, 126 S.W. 370, 128 S.W. 1077, and the recent case of Wolford v. Com. of Ky., 189 S.W.2d 680.
Appellant concedes the rule above mentioned, but in avoidance shows by affidavit that the transcript of evidence was not approved until August 31. It is not contended that in the face of the statute, supra, the time for filing should be computed from this date but given as a reason for not placing the transcript in the mail before that date. It may be noted that in Roby v. Croan, 177 Ky. 9, 197 S.W. 456, we held that no formal bill of exceptions is required. The affidavit states that as soon as the transcript was signed, the record was placed in the mail, addressed to the clerk of this court; that in ordinary course it should have reached Frankfort on the following morning; that the custom of the post office was not to deliver mail on Saturday afternoon, and state officers and employees took half holiday on Saturdays; that the day following was Sunday, and the next day Labor Day, which by 2.110, KRS, is set apart as a holiday on which 'no person shall be compelled to labor.'
It is contended by appellant that to turn the motion to dismiss on the probable issue of a one-half holiday custom (Saturday) and the definite holiday (Labor Day) will unjustly deprive him of his legal right to have his appeal decided on its merits. In final analysis the contention is that because September 3d, the last day on which the filing would, under the statute and our rulings, have given the court jurisdiction, was a legal holiday, it should not be included as a day in computation of the time. The statutes do not so provide.
Appellant cites Black v. National Bank of Kentucky, 226 Ky. 152, 10 S.W.2d 629, where in construing § 463, Civil Code of Practice, which provides for a filing of traverse and bond in a detainer case, within three days next after the finding, we held appellant excused from compliance where the traverse was filed one day too late under the following circumstances. The judgment in the Justice's court had been rendered on October 10, and the traverse and bond were not filed until October 13, because since October 12 was a legal holiday the Justice's office was closed and an effort on the part of appellant to locate him failed. We wrote in that case that the three days mentioned in the Code, supra, meant juridical days, days on which the court was in session. This ruling was based on an opinion in Witt v. L. & E. R. Co., 158 Ky. 401, 165 S.W. 399. We were there dealing with a balated motion for a new trial, where the motion is required to be made at a 'term of court.' We note on the point involved, this case has not been cited in this court since its rendition, and we find it to be in opposition to the great majority of such cases.
In Tennessee Central R. R. Co. v. Reeves' Adm'r, 143 Ky. 467, 136 S.W. 870, where the appeal was filed too late, we held that it was incumbent on the appellant to have the time for filing the record...
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