Lykins v. Steele

• Decision Date: 01 October 1903
• Citation: 76 S.W. 39
• Parties: LYKINS v. STEELE.
• Court: Kentucky Court of Appeals

76 S.W. 39

LYKINS v. STEELE.

Court of Appeals of Kentucky.

October 1, 1903

Appeal from Circuit Court, Morgan County.

"Not to be officially reported."

Action by Floyd Steele against S. J. Lykins, contesting election to the office of school trustee. From a judgment for plaintiff defendant appeals. Dismissed.

W. W McGuire, for appellant.

S. M Nickell and Finley E. Fogg, for appellee.

O'REAR J.

Appellant and appellee were voted for for the office of school trustee of district No. 9. Morgan county, at an election held October 12, 1901. The certificate of election was awarded to appellant. Appellee filed this suit in the Morgan circuit court, contesting appellant's election. The circuit court adjudged the office to appellee. The steps taken in the preparation of the case before it reached this court are not deemed material here, in view of the conclusion at which we have arrived upon another and controlling point. The judgment was rendered in the circuit court on the 28th day of March 1902. The transcript of the record was not filed in this court until April 28, 1902, more than 30 days from the rendition of the judgment. By section 12, c. 5, p. 40, Acts Ex. Sess. 1900, amending the laws relating to contested elections, it is provided that: "Either party may appeal from the judgment of the circuit court to the Court of Appeals by giving bond to the clerk of the circuit court, with good surety, conditioned for the payment of all costs and damages the other party may sustain by reason of the appeal and by filing the record in the clerk's office of the Court of Appeals, within thirty days after final judgment in the circuit court." In Edwards v. Logan (Ky.) 69 S.W. 800, it was held that a transcript not filed within the 30 days would deprive this court of jurisdiction unless the failure to file was waived. Instead of being waived in this case, it is insisted upon by a plea of limitation filed. Nor does it sufficiently appear that the bond required by the section of the act quoted above was executed. The only information furnished by the record on this subject is the following memorandum by the clerk of the circuit court: "Supersedeas bond executed according to law, April 28th, 1902. H. M. Cox, Clerk." The bond should have been made a part of the record. In its absence, we cannot determine that the bond was executed. Both of these requirements are conditions upon the fulfillment of which depend the jurisdiction of this court upon the appeal.

It is very earnestly contended for appellant that the statute quoted above does not apply to a contested election between candidates for school trustee. It is argued that the Constitution provides a different method and time for holding these school elections from those for holding elections generally, and that there is no provision of the statutes expressly giving to any court or tribunal the right to try a contest between rival candidates for the office of school tru...