Shaver v. Sparks

• Decision Date: 24 March 1939
• Citation: 277 Ky. 581
• Parties: Shaver v. Sparks et al. Crabtree v. Same.
• Court: United States State Supreme Court — District of Kentucky

277 Ky. 581

Shaver v. Sparks et al.

Crabtree v. Same.

Court of Appeals of Kentucky.

March 24, 1939.

Sunday; Time. — Appeals must be dismissed as not brought within statutory time, where record was received by clerk of Court of Appeals on Sunday, on which such time expired, and filed on following day (Ky. Stats., sec. 1596a-12).

Appeal from Muhlenberg Circuit Court.

NEWTON BELCHER for appellants.

T.O. JONES for appellees.

Before Clarence Bartlett, Judge.

OPINION OF THE COURT BY JUDGE RATLIFF.

Dismissing appeals.

These two cases arise out of the same state of facts and have been consolidated on this appeal and will be disposed of in one opinion.

The appellants and five others, viz., Huba Sparks, Nobel Whitmer, Fred Fleming, T.B. Withers and J.C. Hocker, were candidates at the November 1938 election for members of the Muhlenberg County Board of Education. The respective candidates received the following number of votes: Crabtree 1,077; Shaver 1,186; Sparks 1,528; Whitmer, 1,378; Fleming, 1,100; Withers 995 and Hocker 168.

Sparks and Whitmer having received the highest number of votes were awarded the certificate of election and qualified for the offices. There were only two members of the Board of Education to be elected.

The appellants, Crabtree and Shaver, filed their respective petitions in the Muhlenberg circuit court contesting the election on the ground that their respective petitions filed with the clerk of the county court authorizing their names to be placed upon the official ballot were the only legal petitions filed and the petitions of the other candidates were void and therefore all votes cast for their respective opponents were void, and since their petitions were the only legal ones filed, they received the only legal votes cast and should be declared elected to the offices they sought.

By subsequent pleadings the issues were made and the chancellor held and adjudged that the petitions of each and all of the candidates, filed with the clerk, were valid and adjudged Sparks and Whitmer elected, and to that judgment appellants excepted and prayed an appeal to this court, which was granted.

At the outset, the appellees have entered motion to dismiss the appeal because the record was not filed with the clerk of this court within thirty days from the rendition of the judgment in the lower court as required by section 1596a-12 of the Kentucky Statutes.

The judgment in the court below was entered on the 28th day of January 1939, and the record was received by the clerk of this court on Sunday, February 26, 1939. We find on the record this notation by the clerk: "(Received on Sunday Feb. 26th)", and marked filed "February 27th, 1939".

Appellants concede that the thirtieth day from the entry of the judgment in the court below expired on February 26th, but they...