Pearson v. Jordan

• Decision Date: 13 November 1939
• Docket Number: 33949
• Citation: 186 Miss. 789,192 So. 39
• Court: Mississippi Supreme Court
• Parties: PEARSON v. JORDAN

192 So. 39

186 Miss. 789

PEARSON v. JORDAN

No. 33949

Supreme Court of Mississippi, Division B

November 13, 1939

APPEAL from the Special Court of Jones county HON. L. C. CORBAN Judge.

Proceeding by W. A. Pearson against Bunk Jordan contesting the nomination of Bunk Jordan as Democratic candidate for supervisor of beat 3 of Jones county. From the judgment of a special court under chapter 19, Laws of the Ex. Sess., 1935 dismissing the contest and declaring Bunk Jordan the nominee W. A. Peason appeals. Appeal dismissed.

Appeal dismissed.

Welch & Cooper, and F. Holt Montgomery, all of Laurel, for motion.

No point was made in the lower court on the failure of the certificate to be executed by two independent attorneys. The point is being made here for the first time.

We submit that the existence of this certificate is essential to the jurisdiction of the special tribunal and since it is lacking the lower court was without jurisdiction and consequently this court is without jurisdiction and the cause will be dismissed because of the lack of jurisdiction.

Section 15, Chapter 19, Laws of Extraordinary Session of 1935; Hickman v. Switzer, case No. 33970, not yet reported.

The statute here involved prescribes that the petition "shall not be filed unless it bear the certificate of two practicing attorneys. . . ."

In view of this requirement and the decisions of this court we have urged that the certificate is essential to the jurisdiction of the lower tribunal and hence to this court. By way of analogy we call to the court's attention the certificate required under Sections 64 and 65 of the Code of 1930 which is to be attached to the record on appeal to the circuit court from a justice court.

This court has consistently held that a failure to attach the certificate deprived the circuit court of jurisdiction and since it had no jurisdiction this court had none.

McPhail v. Blann, 47 So. 666; Xydias v. Pellman, 121 Miss 400, 83 So. 620.

Shannon & Schauber, of Laurel, for appellant.

OPINION

McGowen, J.

The appellant, W. A. Pearson, as contestant, protested before the Democratic Committee of Jones county the nomination of Bunk Jordan, candidate for supervisor of Beat 3 of that county. The Executive Committee declared the contestee the nominee. Thereupon the contestant filed his petition, with certificate attached, with the Circuit Clerk, seeking a hearing before the special tribunal provided in such cases by chapter 19, Laws of the Extra Session 1935. The certificate of two attorneys, required by section 15 of said act, was signed by A. B. Schauber and Charles C. Evans, as attorneys. Schauber undoubtedly was an attorney in the case throughout the proceedings, and is of counsel in the appeal to this Court.

Upon the filing with the Clerk of the Circuit Court of the petition for a hearing, the special tribunal was organized, and upon a hearing dismissed Pearson's cause, declaring Jordan the nominee. From the judgment of that tribunal the contestant, Pearson, has appealed to this Court.

The certificate of Schauber, given under section 15 of the act was equivalent to no certificate at all, and does not comply with the requirement of that section, the material part of which reads as follows: "But such petition for a judicial review shall not be filed unless it bear the certificate of two practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such...