Rasberry v. Hicks

• Decision Date: 12 November 1930
• Docket Number: No. 191.,191.
• Citation: 155 S.E. 616
• Court: North Carolina Supreme Court
• Parties: RASBERRY. v. HICKS et al.

155 S.E. 616

(199 N.C. 702)

RASBERRY.

v.HICKS et al.

No. 191.

Supreme Court of North Carolina.

Nov. 12, 1930.

Appeal from Superior Court, Greene County; Nunn, Judge.

Action by E. A. Rasberry against N. U. Mewborn and S. H. Hicks and others, composing the Board of Elections of the County of Greene. From a judgment dismissing the action, plaintiff appeals.

Appeal dismissed.

This is an action brought by plaintiff against defendants, plaintiff claiming that there were irregularities in a primary election and demanding certain relief.

The matter was heard before Nunn, J., who rendered the following judgment: "This cause coming on to be heard and being heard before the undersigned Judge at chambers in the city of Newbern this 27 September, 1930, upon the complaint and affidavits of the plaintiff and the defendants having demurred to this jurisdiction of the Court, to hear and determine the questions in controversy or make any order in the matter, after argument of counsel for the plaintiff and defendants. It is considered by the Court and ordered and adjudged that the Court is without jurisdiction and the case is therefore dismissed and this plaintiff is taxed with the costs." To the foregoing judgment plaintiff excepted, assigned error, and appealed to the Supreme Court.

On the face of the returns plaintiff received 1, 149 votes and defendant 1, 181, a majority of 32 votes for the defendant Mewborn. On October 3, 1930, plaintiff filed an amended complaint and contended that certain votes cast were illegal and should not have been counted by the defendant board of elections, and setting forth, among other things: "A primary election for the Democratic nomination for the office of Sheriff of the County of Greene was duly held in Greene County, N. C, on the 7th day of June, 1930, in which primary election the plaintiff, E. A. Rasberry, and the defendant, N. U. Mewborn, were two of the candidates for the Democratic nomination to the office of Sheriff, and that in said primary election as declared and announced by the said Board of Elections of the said county, the defendant Mewborn received the second highest vote, and thereafter made demand upon the said County Board of Elections for a second primary to determine the choice of the Democratic voters of the said county for the office of Sheriff, and that in said second primary the two candidates were the plaintiff and the defendant Mewborn, and the said second primary was duly called by the said defendant Board of Elections of the said county and duly held on the 5th day of July. 1930, as prescribed by law. * * * That the plaintiff avers upon information and belief and upon the facts stated herein, that he was the choice of the majority of the duly qualified and registered voters who were entitled to vote, and did vote, in the said election on the 5th day of July, 1930, at the several precincts in the said county of Greene for the Democratic nomination for the office of Sheriff of said county, and but for the unlawful and wrongful vote and irregularities in this complaint stated, the said plaintiff would have been declared and published as the Democratic nominee for the office of Sheriff of said county, even though the said defendant board of elections certified that the defendant Mewborn had received a majority of 34 (32) votes over this plaintiff."

The board of elections,...