Lowery v. Petree
| Decision Date | 17 February 1912 |
| Citation | 57 So. 818,175 Ala. 559 |
| Parties | LOWERY v. PETREE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.
Election contest by William J. Lowery against Sidney J. Petree for the office of judge of probate. From a judgment dismissing the petition, because of failure to give statutory bond, contestant appeals. Reversed and remanded.
The bond was as follows: "We, William J. Lowery [here follows list of sureties], hereby agree to pay to the person legally entitled to same all of the costs of the aforestyled cause, wherein William D. Lowery is contestant and Sidney J. Petree is contestee, provided such Sidney J. Petree be successful in said contest."
Williams & Jones, B. H. Sargent, R. T. Simpson, Jr., W. H. Key, and A. H. Carmichael, for appellant.
Chenault & Chenault, for appellee.
There is no motion to dismiss the appeal. The transcript was filed, though belated, during the term to which, in term time, it was by law returnable. In the absence of a motion to dismiss the appeal, we will not, under these circumstances, consider its dismissal.
The paper, purporting to be a bond, filed with the statement of contest, did not comply with the requirement of the statute in that particular. Code 1907, § 470. It should have been conditioned to secure the "costs of the contest." Obviously, an attempt, though abortive, was made to comply with the statute as to security for costs. In such case the bond, if defective as a statutory obligation, was amendable. Wilson v. Duncan, 114 Ala. 659, 21 South 1017. The doctrine, in this particular, of that decision, was reiterated in Ex parte Shephard, 55 So. 627. The court, therefore, erred in declining to set aside its order of dismissal upon the immediate (thereupon) offer of contestant to perfect the security for costs of contest, to conform it to the requirement of the statute (section 470) therefor.
The judgment of dismissal is reversed, and the cause is remanded.
Reversed and remanded.
All the Justices concur.
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...from which the appeal was taken in the mandamus case, and which was superseded on Judge Garrett's appeal therefrom. Lowery v. Petree, 175 Ala. 559, 57 So. 818. last-cited cases extended only to the costs of contest and amendment of said bonds. The official ballot was prepared by the probate......
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...of the security, provided it secures all the costs without limit in amount. Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Lowery v. Petree, 175 Ala. 559, 57 So. 818. Reliance is had on Painter v. Mauldin, 119 Ala. 88, 24 So. 769. But that opinion was closely limited in Hannis Distilling Co. ......
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...30 Ala. 51, in that respect. Stribling v. Bank of Kentucky, 48 Ala. 451; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Lowery v. Petree, 175 Ala. 559, 57 So. 818; Ex parte Shepherd, 172 Ala. 205, 55 So. 627; Bowen v. Holcombe, 204 Ala. 549, 87 So. 87; Groom v. Taylor, 235 Ala. 247, 178 So. 3......
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Groom v. Taylor, 1 Div. 990
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