Humbert v. Heyburn

• Decision Date: 09 October 1931
• Citation: 240 Ky. 405,42 S.W.2d 538
• Parties: HUMBERT v. HEYBURN et al., and twenty-three other cases.
• Court: Kentucky Court of Appeals

42 S.W.2d 538

240 Ky. 405

HUMBERT v. HEYBURN et al., and twenty-three other cases.

Court of Appeals of Kentucky

October 9, 1931

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Petitions by Frank J. Humbert and others, contesting the nominations of William Heyburn and others as candidates for certain offices. From judgments of dismissal, contestants appeal.

Affirmed.

Gardner K. Byers, Victor I. Cartwright, and Frank R. Cahill, Jr., all of Louisville, for appellants.

Peter Lee, Tabb, Krieger & Heyburn, Harris Coleman, Herman G Handmaker, Selligman, Selligman & Goldsmith, and Alfred Selligman, all of Louisville, for appellees.

REES J.

At the regular primary election held on August 1, 1931, there were opposing candidates for the Republican nomination for the following twenty-four offices in Jefferson county and the city of Louisville: Two county commissioners, twelve members of the board of aldermen, one controller and inspector, one state senator, Twenty-Third senatorial district, six members of the state house of representatives, one magistrate, and one constable. Within the time specified by section 1550-28 1930 Supplement to Carroll's Kentucky Statutes, each of the twenty-four unsuccessful candidates filed a petition contesting the right to the nomination of the opposing candidate to whom the certificate of nomination had been awarded.

The allegations of all the petitions as to grounds of contest relied on are identical. Each of the petitions was dismissed below, and on this appeal the causes have been consolidated. The appellants, who were contestants below, were candidates on what was known as the Petty-Ryan ticket, and the appellees were candidates on what was known as the Harrison ticket, the two tickets representing the two factions of the Republican Party in Jefferson county and the city of Louisville.

After the petitions were filed, each of the contestees filed a special demurrer and a motion to quash the summons, and before any ruling was made upon these pleas, and within the time allowed for answer, filed a motion to strike certain allegations from the petition, a general demurrer, and answer. The court below sustained the special demurrer and the motion to quash and, in order that all questions might be presented on appeal in the event it was finally determined that the court had jurisdiction of the persons of contestees concluded to pass on the motion to strike and the general demurrer. Both were sustained and a judgment was entered in each case dismissing the petition. Both the special demurrer and the motion to quash go to the jurisdiction and they will be considered together.

By chapter 50 of the Acts of 1930, the Legislature repealed section 28 of chapter 7 of the Acts of 1912 (section 1550-28, Carroll's Kentucky Statutes, 1922 Edition), relating to contests of primary elections, and enacted in lieu thereof what is now section 1550-28, 1930 Supplement to Kentucky Statutes. Material changes were made in the method of instituting a contest. Much confusion had arisen in the interpretation of the 1912 act and the 1930 act was passed to simplify and clarify the procedure in primary election contests. Under the 1912 act any candidate, wishing to contest the nomination of any other candidate who was voted for at any primary election, was required to give notice in writing to the person whose nomination he intended to contest, stating the grounds of such contest, within five days from the time the election commissioners should have awarded the certificate of nomination to the candidate whose nomination was contested. The act required that the notice should be served in the same manner as a summons from the circuit court and should warn the contestee of the time and place, when and where he should be required to answer, which should not be less than three nor more than ten days after the service of the summons.

The 1930 act provides that any candidate who was voted for at any primary election may contest the right of any candidate to the nomination by filing a petition in the circuit court of the county of contestee's residence within fifteen days from the date of the primary election, stating the specific grounds relied upon for such contest and causing summons to be issued thereon returnable in ten days. The contestee must file his answer within ten days after service of summons and no ground of contest by either party may be filed or made more definite by amendment after the expiration of the time given by the act to file such ground of contest. Contestant may file a reply within five days after answer is filed, which shall complete the pleadings. The act further provides for the prompt disposal of the case.

The petition in each case was styled a petition in equity and the circuit clerk issued a summons returnable in sixty days and requiring the contestee to answer within twenty days, whereas the summons as required by the 1930 act should have been returnable in ten days and should have required the defendant to answer within ten days. The lower court was of the opinion that the contestant had not caused a proper summons to issue and that the defect in the summons was fatal on the theory that an election contest is a special proceeding and strict adherence to the provisions of the statutes should be required. To this conclusion we are unable to agree.

That was the rule under the act of 1912, which required the contestant to prepare and cause to be served on the contestee the notice of contest. No duty devolved upon the clerk until this notice, properly executed, was returned to his office when he was required to docket the cause and immediately to notify the presiding judge of the circuit court that the contest had been instituted. The act of 1912 did not provide the precise time when the contestee should be required to answer, but did provide that the notice should "warn the contestee of the time and place, when and where the contestee should be required to answer and defend such contest, which shall not be less than three, nor more than 10 days after the service thereof." A proceeding under the old act was a special proceeding, and the duty of preparing and causing to be served on the contestee a proper notice or summons, and naming the precise date when the contestee should be required to answer, was placed on the contestant, and it was held in a number of cases construing that statute that the provision as to time was mandatory and that a failure to state the time when the contestee should be required to answer and defend the contest was fatal to the validity of the notice and deprived the circuit court of jurisdiction. Flannery v. Shanks, 155 Ky. 184, 159 S.W. 695; Baxter v. Watts, 155 Ky. 12, 159 S.W. 608; Pflanz v. Foster, 155 Ky. 15, 159 S.W. 641; Layne v. Owsley, 210 Ky. 281, 275 S.W. 886; Leabow v. Jones, 221 Ky. 509, 299 S.W. 177; Davis v. Preston, 230 Ky. 716, 20 S.W.2d 723. The differences between the 1912 and 1930 acts are fundamental, and the cases above cited, construing the old act, are not controlling in determining the sufficiency of a summons under the present act. Those cases decided in substance that as the contestant was required by the act to fix the return date in the notice, his failure to comply with the statute in that respect was a failure to give any notice at all. The present act provides that the contestant shall file a petition in the circuit court and cause a summons to issue thereon returnable in ten days and the contestee is required to answer within ten days after the service of summons.

It was manifestly the purpose of the Legislature, as heretofore stated, to simplify and clarify the procedure in election contest cases and to put such cases on the same plane as other actions. It is now the duty of the clerk to issue proper summons in an election contest case as in other cases, and the contestant is not required to see that the clerk performs his duty. The contestant complies with all the requirements of the act when he files his petition and causes a summons to issue.

Section 39 of the Civil Code of Practice provides that: "An action is commenced by filing, in the office of the clerk of the proper court, a petition stating the plaintiff's cause of action; *** and, *** by causing a summons to be issued, or a warning order to be made, thereon." Construing this and succeeding sections of the Code in Louisville & Nashville R. R. Co. v. Smith's Adm'r, 87 Ky. 501, 9 S.W. 493, 10 Ky. Law Rep. 514, in which the question of limitation was involved, it was held that it is the duty of the clerk to issue a proper summons and the plaintiff will not be prejudiced by the failure of the clerk to perform his duty in this respect. In Louisville & Nashville Railroad Co. v. Bowen, 39 S.W. 31, 32, 18 Ky. Law Rep. 1099, it was said: "We are of the opinion that, in this case, the plaintiff had filed his petition setting out a cause of action, and had caused summons to issue thereon in time, and that he had done all the law required of him. It was the duty of the clerk to issue summons in accordance with law, and it was not incumbent upon the plaintiff to show that he had issued it. On the contrary, he had the right to repose confidence in the clerk not only knowing his duty, but on his performing it. This was the language of the court in the case of Railroad Co. v. Smith's Adm'r, 87 Ky. 501, 9 S.W. 493 , and, we think, is conclusive of the question of limitation." To the same effect are Morris v. Cumberland Producing & Refining Company, 187 Ky. 15, 218 S.W. 302, and Casey v. Newport Rolling Mill Company, 156 Ky. 623, 161 S.W. 528.

The purpose of the summons is to apprise the defendant that a petition has been filed against him. In each of the...