Huie v. Jones
| Decision Date | 02 November 1962 |
| Parties | R. R. HUIE et al., Appellants, v. Jewell JONES, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Farland Robbins, Mayfield, for appellants.
L. M. T. Reed, Neely & Reed, Mayfield, for appellee.
Jewell Jones sued Luther Gardner and R. B. Huie, county clerk, to keep Gardner's name off the ballot in the November 6, 1962 election for member of the Graves County Board of Education, Division 5. Gardner's motion to dismiss the complaint for failure to state a claim was overruled. Upon a refusal to plead further, judgment was entered enjoining the clerk from placing Gardner's name on the ballot and enjoining Gardner from asserting himself as a candidate. Huie and Gardner appeal.
KRS 160.220 provides that the nominating petition for a member of a board of education shall be signed by not less than fifty legal voters of the district and that the place of residence of each person signing shall be shown. Fifty-eight names were signed to Gardner's petition. Jones challenged three signers for failure to show a place of residence, one signer as not being a legal voter, and six signers who were alleged to have signed both petitions.
Appellants urge that their motion to dismiss for failure to state a claim upon which relief can be granted was erroneously overruled. In considering such motion, the court should not dismiss unless it appears the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. Clay, CR, 13.02, Comment 7; Perry v. Creech Coal Company, D.C.Ky., 55 F.Supp. 998; Ingram v. Ingram, Ky., 283 S.W.2d 210. Such motion is similar to the former general demurrer, in that the motion admits the well-pleaded facts but challenges the right to relief.
The determination of this case must be made from an examination of the complaint. As will be seen, it has been concluded that the court was right in overruling the motion to dismiss.
It was alleged that no address was given for three of the petitioners: Jessie O. McMurray, Randolph Jones, and Mamie E. Jones. The requirement of KRS 160.220 that the 'place of residence' shall be shown has been held to be mandatory. Bogie v. Hill, 286 Ky. 732, 151 S.W.2d 765; Allen v. Hardin, 272 Ky. 396, 114 S.W.2d 494. Considering the allegation of 'no address' in connection with the statute as tantamount to an allegation of 'no place of residence,' it is clear that these three named persons were not proper signers. See Bowling v. Amis, 286 Ky. 738, 151 S.W.2d 760.
It also was alleged that the signatures of W. O. Leonard, Clair Davis, Oleda Woods, Charles A. Woods, Claude Page, and James Tucker appear on both nominating petitions and that Jones' petition was filed first. Appellants contend that the time of signing the petition should determine the validity of the signatures, while appellee urges that the time of filing the petition should control.
In Huff v. Black, 259 Ky. 550, 82 S.W.2d 473, two petitions were filed on the same day. Five of the petitioners signed both petitions. It was held that the first petition was valid when filed and was not invalidated by the filing of the later petition. The five signatures on the second petition were held to be invalid. See also Bowling v. Amis, 286 Ky. 738, 151 S.W.2d 760.
As a practical matter, the time of filing of the petition is the only determinable time and must control. It might be difficult to show the time a petitioner signed the petitions. In case of duplicate signing by a large number of petitioners (in Bowling v. Amis, there were forty-one), the time...
To continue reading
Request your trial
-
Wells v. Ky. Airmotive, Inc.
...of the motion, the facts as pleaded in the complaint are admitted; only the right to relief remains to be challenged. Huie v. Jones, 362 S.W.2d 287, 288 (Ky. 1962). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewin......
-
Edmonson Cnty. v. French, 2011–CA–000963–MR.
...of the motion, the facts as pleaded in the complaint are admitted; only the right to relief remains to be challenged. Huie v. Jones, 362 S.W.2d 287, 288 (Ky.1962). Because the resolution of this case concerns an issue of law, rather than an issue of fact, our review is de novo. Western Kent......
-
Stewart v. Burks
...filed, but that his signature on the first petition would not be invalidated. Huff v. Black, 259 Ky. 550, 82 S.W.2d 473; Huie v. Jones, Ky., 362 S.W.2d 287. In the Huff case it was pointed out that the language in KRS 118.080, which declared that the signer of more than one petition shall n......
-
Simon v. Lexington-Fayette Urban County Government, No. 2007-CA-001002-MR (Ky. App. 5/9/2008)
...of the motion, the facts as pleaded in the complaint are admitted; only the right to relief remains to be challenged. Huie v. Jones, 362 S.W.2d 287, 288 (Ky. 1962). Because the resolution of this case concerns an issue of law, rather than an issue of fact, our review is de novo. Western Ken......