Murphy v. Trimble
| Decision Date | 02 October 1940 |
| Docket Number | 4-6213 |
| Citation | 143 S.W.2d 534,200 Ark. 1173 |
| Parties | MURPHY v. TRIMBLE, JUDGE |
| Court | Arkansas Supreme Court |
Prohibition to Madison Circuit Court; J. W. Trimble, Judge writ granted.
Writ granted.
Nance & Blansett, for petitioners.
E M. Fowler and G. T. Sullins, for respondent.
OPINION
Separate suits were filed in the Madison circuit court by Van Albertson, Howard Brashears and E. E. Polk, who were candidates at the Democratic primary election held in Madison county on August 27, 1940, for the respective offices of representative in the General Assembly, county judge and county treasurer, to contest the nominations of their respective opponents, Carl V. Stewart, Hugh Murphy and Andrew Nelson, who had been declared the nominees of the Democratic party for these offices by the party authorities.
The complaints are identical except the names of the parties and the offices for which they were candidates, and each complaint alleges numerous irregularities in holding the election, and that illegal votes were cast and counted for the contestee, which, if excluded, would result in the nomination of the respective contestants. We find it unnecessary to further abstract the allegations of the respective complaints.
Each complaint was supported by the affidavit required by § 4738, Pope's Digest. The three affidavits are identical, and each reads as follows:
Howard Brashears
Lem Owens
H. F. Hudson
W. J. Drake
A. A. Dennis
F. C. Bunch
Van Albertson
C. F. Fitch
J. G. Berry
There are eleven affiants in each case. Each contestant is an affiant in his own case and in the cases of each of the other two contestants, so that, exclusive of the contestant, there were only ten affiants in any case.
Section 4738, Pope's Digest, prescribes the procedure to be followed in these contests, and requires the complaint to be supported by the affidavit of at least ten citizens.
We perceive no reason why a candidate for one office might not make the supporting affidavit to the contest of another person for a different office, if he is otherwise qualified to do so; but in each case the affidavits of ten qualified persons are required, in addition to the contestant himself. In other words, there must be ten affiants supporting the allegations of the plaintiff's complaint, in addition to the plaintiff himself.
It appears, therefore, that each complaint was supported by the minimum number of affiants required by law, and if any one of these should not be counted, the court would be without jurisdiction to proceed with the contest, it being held in the case of Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182, that the filing of the affidavits was essential to confer jurisdiction upon the court to hear the contest.
Identical motions to dismiss the contests were filed by the contestees in each of these cases, upon the ground that the complaint had not been supported by the affidavits of ten qualified electors, as required by law.
It was alleged in the motions to dismiss that certain affiants had not properly paid their poll taxes, and testimony was heard upon that issue.
It was alleged also that certain of the affiants had not made affidavit in support of the allegations of the respective complaints.
Without making any finding of fact or declaration of law, the court overruled the motions to dismiss the complaints, and, in so doing, said:
The court having indicated the purpose of proceeding with the trial of the causes, application was made here for a writ of prohibition, upon the ground that the court was without jurisdiction to hear the cases, there being a lack of the supporting affidavits required by law.
In his reference to his service as a clerk and as a collector, the court evidently had in mind the conflicting testimony as to whether the affiants, or certain ones of them, had properly assessed and paid their poll taxes. The trial court did not pass upon this question, nor shall we. Indeed, the practice is well settled that prohibition will not be granted in any case where the jurisdiction of the court is dependent upon the decision of controverted questions of fact. We will not, therefore, inquire whether the affiants were qualified electors, and if no other question were presented the writ of prohibition would be denied. Simms Oil Co. v. Jones, Judge, 192 Ark. 189, 91 S.W.2d 258.
There is, however, another proposition in the case, and that is whether, assuming the affiants were qualified electors, less than ten of them made affidavit as required by law. Upon this proposition the undisputed testimony shows that less than ten of the alleged affiants made affidavit as required by law. The rule hereinbefore referred to, that this court will not determine disputed questions of fact to ascertain the presence or absence of jurisdiction does not apply. In such cases the decision of the trial court upon controverted questions of fact, upon which the existence or absence of jurisdiction depends, will be reviewed only upon appeal, and not in an application for prohibition to review an alleged erroneous decision.
The case of Thompson v. Self, supra, did not arise upon an application for a writ of prohibition, but it announced the principles which control here. That case was a contest for a county office, which the court declined to hear upon its merits, for the reason--found by the court--that the alleged affidavits had not been made in manner and form required by law. It was there said that
The affidavits in the case of Thompson v. Self, supra, like those in the instant case, were prima facie sufficient. It was shown by the testimony in that case, as in this, that they were not made in the manner and form required by law, and upon this showing having been made in the Thompson case, supra, the trial court held that it was without jurisdiction to try the case, and it was dismissed for want of jurisdiction. That judgment was affirmed on the appeal to this court. That judgment was based upon the finding that the affidavits had not, in fact, been made by the purported affiants.
Here, the testimony of several of the alleged affiants shows that they did not make the affidavits. There is here a single jurat. It would appear, therefore, that if the affiants were sworn at all, they were all sworn at once. But it is undisputed that several, at least, of these were not sworn at all.
Harold Hudson, when asked who was present when he signed the affidavit, answered: ...
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