State v. McElhinney

• Decision Date: 23 October 1906
• Citation: 199 Mo. 67,97 S.W. 159
• Parties: STATE ex rel. v. McELHINNEY, Judge.
• Court: Missouri Supreme Court

97 S.W. 159

199 Mo. 67

STATE ex rel. v. McELHINNEY, Judge.

Supreme Court of Missouri.

October 23, 1906.

1. ELECTIONS—CONTEST—NOTICE TO CONTESTEE—SUFFICIENCY.

Under Rev. St. 1899, § 7062, in relation to election contests, and requiring contestant's petition to be filed in the office of the clerk of the circuit court, and section 7057, requiring the contestee to be served with a notice of the place of the presentation of the petition, a notice given by contestant, stating that the petition would be filed in the "circuit court," was sufficient.

2. SAME.

Rev. St. 1899, § 7057, in relation to election contests, provides that the contestee shall be served with a copy of the petition and notice of the time of the presentation of the same 10 days before the same shall be presented. Held that, where a notice stated that contestant would file his petition 10 days after the service of the notice, it was sufficient, though the period of 10 days after the notice ended on a Sunday, as the Sunday must be excluded.

3. SAME—WAIVER OF NOTICE.

Where a contestee appeared in the circuit court and filed his answer to the merits, the same being in part a cross-complaint against contestant, he waived the failure to give the notice required by Rev. St. § 7057.

4. PROHIBITION—ADEQUACY OF OTHER REMEDY.

Prohibition will not lie to restrain a circuit court from proceeding with an election contest merely because contestant failed to make a party one who, according to the return, received a greater vote than contestant; the question being one not going to the jurisdiction of the court, and subject to be reviewed by appeal or writ of error.

5. ELECTIONS—NOTICE OF CONTEST.

Rev. St. 1899, § 7057, provides in relation to election contests that the contestee shall be served with a copy of the petition and a notice of the time and place of the presentation of the same, and section 7062 requires the petition to be filed in the office of the clerk of the circuit court of the county where the contestee resides. Held, that a notice was not bad because, in addition to stating that the petition would be filed with the clerk of the circuit court, it stated that it would be filed with a certain named judge, and any nearer judge if there was one, as such additional matter should be treated as unnecessary surplusage.

In Banc. Application by the state, on the relation of Moses N. Sale, for prohibiting John W. McElhinney, judge for the Thirteenth judicial district, and others from proceeding with an election contest begun by William Zachritz against Judge Moses N. Sale for the office of judge of the Eighth judicial circuit. Preliminary rule quashed, and petition denied.

David Goldsmith, J. W. Jamison, and W. Frank Carter, for relator. Thomas J. Rowe and W. E. Fisse, for respondent.

GANTT, J.

This is an application for an original writ of prohibition to issue out of this court prohibiting Judge McElhinney from taking further cognizance and jurisdiction of an election contest begun by William Zachritz, Esq., against Judge Moses N. Sale for the office of judge of the circuit of the Eighth judicial circuit, which comprises the city of St. Louis. A provisional writ was issued out of this court upon the application, made returnable on the 23d of January, 1906, and duly served upon Judge McElhinney and the members of the board of election commissioners and the secretary of said board, and upon the contestant, William Zachritz. On the return day of the rule returns were filed by the several defendants named in the writ, and thereupon the relator filed a reply, and 50 days was awarded to the respective counsel to file their briefs, and an agreed statement of facts was filed by the respective counsel in the cause. It is sufficient for the purpose of this opinion to state that the following facts are admitted: At the general election held on November 8, 1904, five judges of the circuit court of the city of St. Louis were elected, there being five Republican candidates and five Democratic candidates. It is conceded that four of the Republican candidates, to wit, Judges Fisher, Kinsey, Reynolds, and Withrow, were elected, and that they duly received certificates of election and have entered upon the duties of their offices; also that in the canvass of the votes by the election commissioners Judge Moses N. Sale, who was a Democratic candidate, was found and declared to have received 54,489 votes, Mr. Virgil Rule, also one of the Democratic candidates, 53,986 votes, Mr. William Zachritz, a Republican candidate, 53,123 votes, and the remaining three Democratic candidates, to wit, William Christy Bryan 53,106 votes, James R. Kinealy 53,056, and John A. Blevins 53,027 votes. On December 17, 1904, Mr. William Zachritz filed in the office of the circuit clerk of the city of St. Louis a petition of contest, and subsequently, on the ____ day of December, 1905, and, at the December term, 1905, of the said circuit court, an order was made for a recount of votes for said office of judge of the circuit court. The present proceeding is one for a writ of prohibition to prevent the enforcement of that order. While the petition for prohibition states many grounds as inducements to the making of a judgment in prohibiting, the brief and argument submitted by the relator, Judge Sale, in this cause, is based upon two propositions only, namely: First, that the notice given by the contestant, Mr. Zachritz, of his intention to file the contest proceeding, was insufficient to give the circuit court and Judge McElhinney jurisdiction to hear and determine said contest; and, secondly, that the petition of Mr. Zachritz was wholly insufficient, in that he failed to join as a party defendant with said contestee Virgil Rule, who was a candidate for the office of circuit judge at the election of November 8, 1904, and who, according to the official return of that election, received a larger vote than the contestant, although he fell short of receiving such a vote as entitled him to receive a certificate of election.

1. On December 7, 1904, Mr. Zachritz delivered to the relator, Judge Sale, the following notice of contest: "St. Louis, Mo., December 7, 1904. Hon. Moses N. Sale: You are hereby notified that it is my intention to contest your election to the office of judge of the circuit court of the Eighth judicial circuit of the state of Missouri for the term of six years, beginning on the first Monday in the month of January, A. D., 1905, which office you...