Smith v. Combs
| Decision Date | 24 June 1949 |
| Citation | 310 Ky. 755,221 S.W.2d 672 |
| Parties | SMITH v. COMBS et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Perry County; S. M. Ward, Judge.
Election contest by Norman C. Smith against Estill Combs and others. From a judgment dismissing the contest, the contestant appeals.
Judgment affirmed.
J. B. Eversole, Bulan, for appellant.
Gilford Boleyn, Hazard, for appellees.
STANLEY Commissioner.
The appellant, Norman C. Smith, contested the election of the appellee, Estill Combs, as a member of the Board of Education of Perry County in November, 1948. On the face of the returns Combs received a plurality of 84, but on a recount this was reduced to 81 votes. The circuit court dismissed the contest.
The appellant has ignored several rules of this court relating to the preparation of briefs. He has not stated a classification of the questions involved or points upon which his appeal is based. It is difficult to extract them from the body of the discursive brief. Likewise, great complaint is made concerning various conditions claimed to have been proved but with few exceptions no reference is made to the pages of the record which support each assertion. Rule 1.340. Only the importance of an early decision restrains us from setting aside the submission and directing that a brief be filed that will conform to the rules. We confine ourselves to a statement of our conclusions on what the appellant seems to regard as the 'vital questions' to be decided.
(1) The contestant failed to file a reply to the counter-contest. Whether or not the appellee waived the reply by taking proof and otherwise is a wholly irrelevant question. The trial court did not consider the counter-contest as he found the contestant did not make out a case. We are of the same opinion.
(2) The appellant contends there was fraud in the selection and qualification of two officers of election in precinct No. 17 and in those officers permitting illegal votes to be cast to such an extent that the court must declare no election was held in that precinct.
Two of the appointed election officers did not serve. One procured his wife and the other Alfred Napier to serve as their substitutes. The appellant argues vigorously and voluminously that Napier had lost his right to vote and to hold the office because he had moved to Florida and had not been back in Kentucky for one year. The evidence that Napier had lost his right to suffrage is not convincing. It does not appear that the substitute election officers were appointed by the other duly appointed officers as prescribed by KRS 116.130, but they served as de...
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