State v. Spencer

• Decision Date: 18 June 1901
• Citation: 63 S.W. 1118,164 Mo. 48
• Parties: STATE ex rel. FOLK v. SPENCER et al.
• Court: Missouri Supreme Court

63 S.W. 1118

164 Mo. 48

STATE ex rel. FOLK v. SPENCER et al.

Supreme Court of Missouri.

June 18, 1901.

ELECTION CONTEST — PROCEDURE — CIRCUIT ATTORNEYS—NOTICE OF FILING PETITION— JURISDICTION—APPEARANCE—WAIVER.

1. Under Rev. St. 1899, § 7066, making section 7057, requiring 10 days' notice of the time and place of the presentation of a petition in an election contest against a state officer to be given contestee applicable to contests for the office of circuit attorney, the court has no jurisdiction of a contest for the office of circuit attorney, when no notice of intention has been given.

2. As Rev. St. 1899, §§ 7062-7065, regulating the procedure for contesting the election of circuit attorneys, can be fully complied with after 10 days' notice of intention to file the petition in such cases is given contestee as required by section 7057, the latter section is not repealed by implication.

3. In an election contest for the office of circuit attorney, where the court had no jurisdiction because no notice of intention to file the petition had been given contestee as required by Rev. St. § 7057, such failure to give notice was waived by contestee by appearing and answering.

Robinson, J., dissenting.

In banc. Proceeding in prohibition by the state, on the relation of Joseph W. Folk, against Selden P. Spencer, as judge of the circuit court of the city of St. Louis, and others. Preliminary rule prohibiting respondents from carrying into effect an order of the court made permanent.

John H. Overall and Chas. W. Bates, for plaintiff. W. E. Fisse, G. A. Finkelnburg, and Clinton Rowell, for defendant.

MARSHALL, J.

This is an original proceeding in prohibition to prohibit the carrying into effect of an order of Hon. Selden P. Spencer, judge of the circuit court, in the contested election case of Eugene McQuillan, contestant, against Joseph W. Folk, contestee, for the office of circuit attorney of said city. The order is similar to the order considered in State v. Spencer, 63 S. W. 1112, and what is said in that case applies with full force to the case at bar. But, in addition to the questions there raised and decided, the relator herein contends that the circuit court had no jurisdiction of the contested election case of McQuillan against the relator, for the reason that the contestant did not serve upon the contestee a notice of the time and place when and where the petition would be presented 10 days before it was presented, as required by section 7057, Rev. St. 1899. The provisions of the statutes relied on by relator are these: Section 7069, Rev. St. 1899, provides that contests over the election of any circuit attorney or assistant circuit attorney shall be heard and determined by the circuit court of the county or city wherein either contestant or contestee resides. Section 7070 provides: "All proceedings for contesting elections of circuit attorney, or assistant circuit attorney, shall be conducted in all respects as provided for contesting elections of judges of circuit courts." The statutory provisions for conducting contested elections for judges of the circuit courts are these: Section 7061 provides that such contests shall be heard and determined before the circuit judge of an adjoining circuit whose place of residence is nearest to the residence of the contestee. Section 7062 provides: "If any person contests the election of judge of the circuit court, he shall, within forty days after the election, file, in the office of the clerk of the circuit court of the county in which the contestee resides, a petition, setting forth the points on which he will contest the same and the facts which he will prove in support of such points and shall pray for leave to produce his proofs." Section 7063 provides for issuing a summons upon said petition as near as may be the same as an ordinary summons, and how the summons shall be served. Section 7064 provides that the contestee may answer within 30 days after being served with summons, and also provides that the clerk shall immediately notify the judge of the circuit court, whose residence is nearest to the court where the contest is filed, of the filing of said petition and answer, "and the said judge shall be possessed of said cause and have jurisdiction to try the same, and may at once appoint a commissioner to take testimony in the same way and manner as provided for contest of state officers." Provision is also made for an appeal to the supreme court "as in ordinary civil cases." Section 7065 regulates the practice in the appellate court. Section 7066 is as follows: "The provisions of sections 7057, 7058, 7059, and 7060, concerning contests and proceedings therein in the supreme court and before the judges thereof, shall be applicable to and shall govern contests for the office of circuit judge, and proceedings therein in the circuit courts, and before the judges thereof." The provisions of the sections here referred to are as follows: Section 7057 provides that, if any person contests the election of judge of the supreme court, judge of either of the courts of appeal, superintendent of public schools, secretary of state, state auditor, state treasurer, or attorney general, "he shall present a petition to the supreme court at the first term next after the election, or to any three judges thereof in vacation, within forty days after the election, setting forth the points on which he will contest the same and the facts which he will prove in support of such points, and shall pray for leave to produce his proof. The contestee shall be served with a copy of such petition, and a notice of the time and place of the presentation of the same, ten days before the same shall be presented, and the contestee may, upon the presentation of such petition, file his answer thereto, specifying reasons why his election should not be contested." Section 7058 provides for appointing a commissioner and the taking of testimony. Section 7059 defines the power of the commissioner. Section 7060 regulates the practice before the commissioner.

Thus a contested election case for the office of circuit attorney and assistant circuit attorney is required to be conducted in all respects like contested election cases for judges of the circuit court, except that it is tried in the circuit court of the county or city where the contestant or contestee resides. Contested election cases for judge of the circuit court are begun by filing a petition in the office of the clerk of the court of the county in which the contestee resides within 40 days after the election, but the case is to be tried before the circuit...