Slinkard v. Hunter
| Decision Date | 04 February 1936 |
| Docket Number | 26637 |
| Citation | 199 N.E. 560,209 Ind. 475 |
| Parties | SLINKARD v. HUNTER |
| Court | Indiana Supreme Court |
Appeal from Greene Circuit Court; Webster Moffit, Judge.
1. ELECTIONS---Contest---Nature and Form of Remedy.---Procedure for election contest and for recount of votes is purely statutory, and one seeking relief under the statute must bring himself strictly within its terms. p. 478.
2. ELECTIONS---Contest---Statutory Limitations---Generally.---Statutory limitations of time within which to take steps in an election contest or recount are mandatory, and unless strictly complied with the court is without jurisdiction of the subject-matter. p. 478.
3. ELECTIONS---Contest---Statutory Limitations---Filing Substitute Bond for Recount.---Where bond for recount, filed with the petition for contest, was insufficient and a sufficient bond was substituted therefor after the time permitted by statute had expired, the court was without jurisdiction to appoint recount commissioners. p. 479.
4. ELECTIONS---Contest---Petition for Recount---Dismissal---Failure to File Bond Timely.---Where sufficient bond for recount was not filed within the time allowed by statute, the court's lack of jurisdiction of the subject-matter was properly raised by a motion to dismiss the petition, and could have been raised at any time during the contest proceeding either with or without a written motion. p. 479.
5. ELECTIONS---Contest---Petition for Recount---Dismissal---Effect on Contest.---Where petition for election contest was timely filed, dismissal of contestor's petition for recount because a sufficient bond therefor was not timely filed, held not to affect the court's jurisdiction of the subject-matter of the contest proceeding. p. 479.
6. ELECTIONS---Contest---Statutory Limitations---When Contest "Commenced."---An election contest is "commenced," within the meaning of statutory limitations, when the petition is filed and, unlike civil actions, is not dependent upon the issuance of summons. p 479.
7. APPEARANCE---Jurisdiction Acquired---Of the Person.---Jurisdiction of the person may be acquired by service of process or by a voluntary appearance. p. 480.
8. APPEARANCE---Waiver of Objections---To Defects in Process.---An appearance to the action amounts to a waiver of process or of irregularities or imperfections in service. p 480.
9. APPEARANCE---General Appearance---Acts Constituting---Motion for Change of Judge.---Defendant's appearance in an election contest to ask for a change of judge held a general appearance giving the court jurisdiction of the person although the appearance was designated "special," since the character of the appearance is determined by the steps taken without regard to the defendant's designation thereof. p. 480.
10. ELECTIONS---Contest---Petition for Recount---Dismissal---Effect on Contest.---In election contest, where the court had jurisdiction of the subject-matter of the contest proceeding and of the person of the defendant, it was error to dismiss the contest because of lack of jurisdiction to appoint recount commissioners. p 480.
11. APPEAL---Briefs---Non-Compliance With Court Rules---Consideration of Merits.---Where appellant's briefs were sufficient to advise the court of the questions sought to be presented, although not strictly complying with court rules, the merits were considered. p. 481.
Action by William L. Slinkard against Orval D. Hunter to contest the election of prosecuting attorney. From a judgment dismissing the contest, contestor appealed. Reversed.
Appeal from Greene Circuit Court; Webster Moffit, Judge.
W. L. Slinkard, of Bloomfield, pro se.
Beasley & Beasley, of Linton, and Will R. Vosloh and Orval D. Hunter, both of Bloomfield, for appellee.
Appellant, who was a candidate for the office of prosecuting attorney, filed a petition to contest the election for that office under section 29-2304, Burns' Ann.St.1933, Baldwin 1934, § 7431. His petition is upon the ground of illegal votes and fraud or mistake in the official count. The petition states that the contestor desires a recount of the votes. The petition was filed upon the last day permitted by the statute. An undertaking was filed with the petition, which was insufficient and which the clerk did not approve. Two days later a sufficient undertaking was filed, was approved, and then, and not until then, notice to the contestee issued. Section 29-2304, section 7431, supra, provides that any person desiring to contest an election shall file a petition in the office of the clerk of the circuit court, specifying one or more of the statutory grounds of contest; that the petition shall be filed not more than ten days after the Thursday next following such election; that if the contest is upon the ground of illegal votes or fraud or mistake in the official count, and the contestor desires a recount, he shall so state in his petition, and shall file with his petition a written undertaking payable to the contestee, and to the approval of the clerk, conditioned that he will pay all costs of such recount. 'Upon such petition being filed, and such undertaking being filed and approved, when such undertaking is required by this act, then the clerk shall issue a notice, in the form of a summons, directed to the sheriff of such county, directing him to summon the contestee and all other persons named in such petition, as candidates for such office, to appear and answer such petition, on a day to be fixed in such notice, not more than ten (10) days nor less than five (5) days after the service of such notice.' Two days after the filing of the petition, and after the time for filing had expired, the clerk issued a summons to the contestee notifying him to appear five days later and answer. Upon the date fixed in the summons, the record shows that appellee's attorneys 'appeared specially for the said Orval D. Hunter for the purpose of filing affidavit for change of venue from the judge.' The affidavit for a change was filed, and the change granted, and, by agreement of the parties, a special judge was appointed. Thereafter the record recites: 'Comes now Orval D. Hunter and files his verified motion to strike out petition for recount.' The motion alleges that at the time of filing appellant's petition an undertaking was filed, which was never approved by the clerk; that thereafter, and after the time allowed by statute for the filing of a petition for contest, appellee withdrew his undertaking, and, without the consent of the court, filed a substituted undertaking; that no notice or summons was issued by the clerk at the time the petition and first undertaking were filed, nor until after the withdrawal of the first undertaking and the filing of the second. There was a prayer that the petition for recount be stricken from the files. The ruling on the motion is shown by the following entry: ...
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