Stafford v. Bailey

• Decision Date: 16 February 1940
• Citation: 282 Ky. 525
• Parties: Stafford v. Bailey.
• Court: United States State Supreme Court — District of Kentucky

Page 525

282 Ky. 525

Stafford v. Bailey.

Court of Appeals of Kentucky.

February 16, 1940.

1. Elections. — Election contests are in the nature of summary proceedings and prescribed requirements are "conditions precedent" to exercise of the right, thus making them jurisdictional, and hence neither parties nor the courts may dispense with them for any reason and thereby take jurisdiction when under prescribed procedure none existed (Ky. Stats., sec. 1596a-12).

2. Elections. — The statutory required bond as condition precedent to prosecution of appeal from election contest judgment is jurisdictional and must be complied with (Ky. Stats., sec. 1596a-12).

3. Eections. — An appeal from election contest judgment could not be prosecuted without executing jurisdictional bond, under statute authorizing a court upon proper showing to relieve a litigant from payment of costs, since contest statute having been enacted at much later date than statute providing for relief from costs, superseded prior statute even if such statute was broad enough to include election contests (Ky. Stats., secs. 884, 1596a-12).

4. Elections. — An appeal from election contest judgment could not be prosecuted without executing jurisdictional bond even if case was governed by statute authorizing court upon proper showing to relieve a litigant from payment of costs, since no court has right to dispense with jurisdictional requisite in order to afford a litigant opportunity to continue in court by relieving him from paying all necessary expenses, and which jurisdictional requirements which he seeks to dispense with, demand that he shall secure (Ky. Stats., secs. 884, 1596a-12).

5. Costs. — The payment of "costs" against which court may upon proper showing relieve the litigant under statute are strictly court costs incident to litigation and going to officers performing services, the payment or security of which is not made jurisdictional (Ky. Stats., sec. 884).

6. Constitutional Law. — Neither trial court nor Court of Appeals has right to repeal or set aside a duly enacted mandatory statute.

Appeal from Johnson Circuit Court.

Joe P. Tackett for appellant.

H.H. Ramey, Walter Prater and John L. Harrington for appellee.

Before A.F. Childers, Special Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Overruling motion.

This is an election contest proceeding filed by appellant against appellee in the Johnson circuit court contesting the right to the office of circuit judge of the Twenty-fourth Judicial District in the Commonwealth composed of the counties of Johnson and Martin, the election being a regular one held in November, 1939, to choose an incumbent for a full term of six years. The election commissioners of the two counties composing the district certified a majority for contestee, James F. Bailey, of practically 3,000 votes over the contestant, but that majority was reduced in the final judgment rendered by the court — presided over by a special judge — to practically 2,000 majority of votes received by the contestee.

At the beginning of the contest in the circuit court contestant entered motion...