Irby v. Day
| Decision Date | 03 November 1930 |
| Docket Number | 209 |
| Parties | IRBY v. DAY |
| Court | Arkansas Supreme Court |
Appeal from Clay Circuit Court, Eastern District; W. W. Bandy Judge; affirmed.
Judgment affirmed.
Baker & Gautney, for appellant.
Wm. F Kirsch and Oliver & Oliver, for appellee.
Appellant one of the opponents of appellee for representative in the county of Clay in the Democratic primary election, held on the 12th day of August, 1930, brought suit in the circuit court of said county to contest appellee's certificate of nomination by the county central committee, alleging that he (appellant) received 1,198 votes, a plurality of all legal votes cast for representative in said primary election, whereas appellee received 907 legal votes and 450 illegal votes, specifically charging that 450 persons in certain townships in said county voted for appellee who were not qualified electors by reason of having failed to pay their respective poll taxes as required by law.
Service was obtained upon appellee on August 23, 1930, and, on application of appellant, a special term of said court was called for September 8, 1930, to try the contest.
On the 1st day of September, 1930, eight days before the special term of court convened, appellee over appellant's objection filed a motion to quash the service upon him which the court overruled when it convened on the 8th day of September, 1930, and, reserving exception to the court's action in overruling his motion to quash the service, appellee filed, also over appellant's objection, a plea in abatement alleging that prior to November 30, 1921, appellant was postmaster at the town of St. Francis in Clay County, Arkansas, and as such postmaster had in his custody the money received from said office, said money being the property of the United States of America; that said appellant feloniously embezzled a large sum of money, the property of the United States of America and became a fugitive from justice, concealing himself under an assumed name in the State of Mississippi; that the said Irby was indicted for embezzlement under § 225 of the Revised Criminal Code of the United States in the District Court of the United States for the Jonesboro Division of the Eastern District of Arkansas, and was arrested in the State of Mississippi and brought back to Arkansas for trial; that said cause was transferred to the Little Rock Division of said District Court for trial, and at said trial, said W. O. Irby was convicted on the 17th day of February, 1922, and sentenced to serve a year and a day in the Federal Penitentiary at Atlanta, Georgia, and that he was never pardoned.
Appellant objected to the filing of the plea in abatement because more than ten days had elapsed after the complaint had been filed and service had upon appellee.
After overruling appellant's objection to the filing of same, without waiving his objections and exceptions, appellant filed a demurrer to the plea in abatement on the following grounds:
The demurrer was overruled by the court, over appellant's objection and exception, and, appellant refusing to plead further, the court dismissed his complaint, from which judgment of dismissal is this appeal.
Appellant's first contention for a reversal of the judgment is that the...
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