Messick v. Grainger

• Citation: 205 S.W.2d 739,356 Mo. 1227
• Decision Date: 10 November 1947
• Docket Number: 40225
• Parties: Joy F. Messick, Appellant, v. J. Reed Grainger
• Court: United States State Supreme Court of Missouri

205 S.W.2d 739

356 Mo. 1227

Joy F. Messick, Appellant, v. J. Reed Grainger

No. 40225

Supreme Court of Missouri

November 10, 1947

Appeal from Polk Circuit Court; Hon. Charles H. Jackson Judge.

Affirmed.

Herman Pufahl and Neale, Newman, Neale, Freeman & Wampler for appellant.

(1) House Bill 602, approved July 3, 1946, is made up of Sections 2 to 37, inclusive, Section 37 being the emergency provision. These thirty-seven sections are the only statutes in the State of Missouri bearing upon or relating to the manner of conducting a contested election case. Our courts have universally held that as applied to election contest procedure these sections constitute "a code unto itself", and that other and general provisions of the Code of Civil Procedure are not applicable in such cases. State ex rel. Wells v. Hough, 193 Mo. Sup. 16, s.c. 91 S.W. 905; Hancock v. Spencer, 166 Mo. Sup. l.c 285; Spitcaufsky v. Hatten, 182 S.W. 86; Creason v. Yardley, 198 S.W. 830; State v. Cave, 199 S.W. 1014; State ex rel. Brown v. Stewart, 281 S.W 768; State v. Becker, 9 S.W.2d 155; State ex rel. Caysing v. Ryan, 67 S.W.2d 983; Armantrout v. Bohon, 162 S.W.2d 867; State v. Killoren, 188 S.W.2d 1. (2) The contestee, by agreeing to continue the case from November 29, 1946, to November 30, 1946, entered his general appearance and waived any right that he might have had to object to the service of the notice of contest or the fact that the notice was served by the contestant personally instead of by an officer. Bohn v. Delvin, 28 Mo. 319; Orear v. Clough, 52 Mo. 55; Peters v. St. L. & L. Railroad, 59 Mo. 406; Baisley v. Baisley, 113 Mo. 544; Cook v. Globe Pub. Co., 227 Mo. 471; State ex rel. Newell v. Cave, 272 Mo. 653, 199 S.W. 1014; State ex rel. Bulger v. Southern, 278 Mo. 610; Harrison v. Murphy, 106 Mo.App. 465; Bitter v. Gold Creek Mining Co., 111 A.L.R. 621; 4 C.J., p. 1312; C.J.S., pp. 12, 13, 26, 42, 53.

W. W. Sunderwirth, J. W. Collins and Bradshaw & Fields for respondent.

(1) Jurisdiction of person of contestee requires service of "Notice of Contest" by officer of court. Metropolitan Properties Co. v. Rideout, 142 S.W.2d 1055; Jeck v. O'Meara, 122 S.W.2d 897; Armantrout v. Bohon, 162 S.W.2d 867; Phelps v. Fenix, 134 S.W.2d 84; Sec. 2, House Bill 602; State ex rel. Woodson v. Robinson, 192 S.W. 1001; Castello v. Court, 28 Mo. 259; State ex rel. v. Southern, 214 S.W. 100; State ex rel. v. Cave, 199 S.W. 1014; Green v. Owen, 38 S.W.2d 496; State ex rel. v. Ryan, 67 S.W.2d 983; State ex rel. Penrose v. Killoren, 188 S.W.2d 1; State ex rel. v. Green, 143 S.W.2d 64; State ex rel. Brown v. Stewart, 281 S.W. 768. (2) There was no entry of general appearance by respondent. Nulsen v. Natl. Pigments & Chemical Co., 145 S.W.2d 410; State v. Taylor, 173 S.W.2d 902; Oetting v. Green, 166 S.W.2d 548; Supreme Court Rule 3.23; New York Life Ins. Co. v. Calhoun, 114 F.2d 526; Armantrout v. Bohon, 162 S.W.2d 867.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Appellant, as contestant, on November 23, 1946 filed in the office of the clerk of the circuit court of Cedar County notice of contest, the purport of which was to contest the election of respondent to the office of collector of Cedar County at the general election November 5, 1946. The cause reached the circuit court of Polk County, where respondent's motion to dismiss the proceeding was sustained; the proceeding dismissed and contestant appealed.

At the general election, November 5, 1946, in Cedar County, contestant was the Democratic nominee for collector and contestee was the Republican nominee. It is alleged in the notice of contest that the official count gave contestee a majority of 10 votes and he was commissioned. It appears from the notice of contest that contestant challenged 54 absentee ballots and one other counted for contestant. Also, other charges are made. The notice of contest recited that at 9 a.m., on November 29, 1946, or as soon thereafter as the court would hear the same, the matters contained in the notice of contest would be presented to the court, and it was recited that at the same time contestant would ask the court to make an order for a recount of the ballots for collector. Application for a recount of the ballots was filed along with the notice of contest.

The notice of contest was served on contestee by contestant himself, on same day filed, by delivering to contestee a copy of the notice. On the same day the sheriff of Cedar County served upon contestee copy of the application for a recount of the ballots.

November 30, 1946, contestee filed in the circuit court of Cedar County his motion to dismiss, the meat of which motion follows: "Comes now F. Reed Grainger, hereinabove designated contestee, and appearing specially for the purpose of this motion only and for no other purpose, respectfully prays the court to dismiss this proceeding; and as grounds therefor the contestee states that no official process server of this court or other bonded officer has ever at any time served upon said contestee, F. Reed Grainger, any notice of contest of the contestee's election to the office of county collector of Cedar County, Missouri; that, in fact, the only information the contestee has of the pendency of this action is a so-called 'notice of contest' delivered on November 23, 1946, to the contestee by a private person, to wit, Joy F. Messick, the contestant herein; that the action of the said contestant in delivering said notice to the contestee did not constitute service of the statutory notice of contest required for summons and as a prerequisite to this court's jurisdiction in a contested election proceeding involving a county office."

Thereafter and on the same day that contestee filed motion to dismiss, Judge O. O. Brown, judge of the circuit court of Cedar County, on his own motion, disqualified himself to sit in the cause. The disqualifying order recites that "the contestee, not appearing and consenting to any other judge to sit on the trial of said cause, or a special judge agreed upon or elected in the manner provided by law, the judge himself does award a change of venue without any application from either party, as provided by section 1059, revised statutes 1939. And said cause is transferred to Judge Charles H. Jackson, circuit judge at Bolivar, Polk County, Missouri, upon the original rolls in said cause."

December 6, 1946, the parties appeared in the circuit court of Polk County, contestee limiting appearance to the presentation of his motion. As stated, the motion was sustained and the proceeding dismissed. The order and judgment sustaining the motion follows:

"The court having examined the motion and heard the evidence and argument of counsel, does find: That the notice of contest in this case was not served by an officer, but was served by the contestant himself by delivering the notice to the contestee in person on the 23rd day of November, 1946, and that there has been no service of notice of contest in this case at any time by an official process server or bonded officer, and that the only notice served by the sheriff of Cedar County was the application asking for a recount of the ballots.

"Therefore, the court finds that this court is without jurisdiction to hear this proceeding, because no notice of contest has been served by an officer upon the contestee, as required by statute, and the contestee has entered no general appearance in this proceeding or agreed to the manner of service employed.

"The court does, therefore, order, adjudge and decree that the said motion to dismiss be, and the same is hereby sustained, and this proceeding ordered dismissed because of the lack of jurisdiction of this court over the person of the contestee; and that the costs of this proceeding be taxed against the contestant."

The law governing an election contest of the kind here is a new act effective July 3, 1946. See Laws 1945, pp. 887-894. The new act or article, is in lieu of article 8, chapter 76, R.S. 1939, Secs. 11632-11675. Sec. 2 of the new article, among other things, provides that no election of any county officer "shall be contested unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted. The notice shall specify the grounds upon which the contestant intends to rely, and if any objection be made to the qualifications of any voters, the names of such voters and the objections shall be stated therein. The notice shall be served fifteen days before the term of court at which the election shall be contested, by delivering a copy thereof to the contestee, or by leaving such copy at his usual place of abode with some member of his family over the age of fifteen years; or, if neither such contestee nor his family can be found in the county, and service therefore cannot be had as aforesaid, it shall be sufficient service of such notice for the contestant to post a copy thereof in the office of the clerk of the court wherein the contest is to be heard."

On the subject of notice and service thereof, Sec. 2 of the new article is practically the same as old Sec. 11632. The notice of contest under Sec. 2 takes the place of a petition in the ordinary cause and the service of the notice upon the contestee fills the office of a summons in the ordinary cause. See State ex rel. Woodson v. Robinson (banc), 270 Mo. 212, 192 S.W. 1001, l.c. 1003; Hale v. Stimson (banc), 198 Mo. 134, l.c. 145, 95 S.W. 885; State ex rel. Wells v. Hough (banc), 193 Mo. 615, 91 S.W. 905; State ex rel. Penrose v. Killoren, 354 Mo. 22, 188 S.W.2d 1. The Robinson case, on the subject of jurisdiction of the subject matter, was overruled in State ex rel Newell v. Cave, 272 Mo. 653, l.c. 662, 199 S.W....