State v. Spencer

• Decision Date: 21 December 1901
• Citation: 166 Mo. 279,65 S.W. 984
• Parties: STATE ex rel. HANCOCK v. SPENCER, Judge, et al.
• Court: Missouri Supreme Court

65 S.W. 984

166 Mo. 279

STATE ex rel. HANCOCK v. SPENCER, Judge, et al.

Supreme Court of Missouri.

December 21, 1901.

ELECTION CONTEST — JURISDICTION — WHEN ACQUIRED—PETITION AND SUMMONS—SERVICE—PLEADING—ANSWER—FACTS IN ABATEMENT.

1. Rev. St. 1899, § 7063, authorizes the filing of a petition in an election contest, and the issuance of a summons. Section 7064 declares that the contestee shall answer the petition within 30 days, specifying the reasons why his election should not be contested; that on the filing of the answer the clerk shall immediately notify the circuit judge, and the judge shall be possessed of said cause, and have jurisdiction to try the same. Held, that jurisdiction attaches when the petition is filed and summons issued as provided by section 7063.

2. Since the only pleading in an election contest by the defendant which is authorized is the answer provided for by Rev. St. 1899, § 7064, which it is declared the contestee shall serve, specifying reasons why his election should not be contested, any defense, whether to the jurisdiction or to the merits, may be stated in the answer; and a contestee did not waive the right to insist that the contest should be dismissed for contestant's failure to file his petition or serve his notice in time by failing to plead such facts in abatement, they being properly alleged in the answer.

Robinson, J., dissenting.

In banc. Prohibition by the state, on the relation of W. Scott Hancock, against Selden P. Spencer, judge, and others, to restrain defendants from carrying out an order in an election contest. Writ absolute.

John H. Overall, for relator. McCoy & Gillespie, for respondents.

MARSHALL, J.

This case was here once before, and is reported in 63 S. W. 1133. It then appeared to be on all fours with the case of State ex rel. Folk v. Spencer (Mo.) 63 S. W. 1118, and was disposed of by the decision in that case. The circuit court made the same order in this case that it made in the case of State ex rel. Funkhouser v. Spencer (No. 10,975) 65 S. W. 981. The notice of contest in this case is similar to the notice in the Funkhouser Case, except that it charged that all the 136,000 votes cast at the election for assistant circuit attorney were fraudulent, and did not except the 300 in the Fourth ward referred to in that case. The contestant did not give the 10-days notice of intention to file his petition in contest, as required by section 7057, Rev. St. 1899, and which was held in the Folk Case to be a necessary prerequisite to confer jurisdiction upon the circuit court. In the Folk Case it was held that by appearing and answering to the merits, and by not objecting to the failure to give the 10-days notice, the contestee had waived that question, and had conferred jurisdiction upon the circuit court. At that time it appeared from the record before us that this petitioner had done the same thing. The preliminary rule in prohibition in the Folk Case and in this case was then made absolute for the reasons given in the Funkhouser Case (Mo.) 63 S. W. 1112. Afterwards the circuit court made the same order in this case that it made in the Funkhouser Case (No. 10,975, just decided) 65 S. W. 981. What is now said in that case, except as to the 300 votes in the Fourth ward, applies equally to this case, and results in making the preliminary rule absolute in this case, also. But, in addition to what is said in that case, it now appears that this petitioner on the 24th of December filed an answer to the contestant's petition, denying the allegations thereof, and further alleging that the circuit court ought not to take jurisdiction of said contest for the following reasons: "Because contestant did not present his petition to said court at the first term holden next after the election, nor to a judge of said court in vacation within forty days after said election, setting forth the points on which he would contest the same, and because contestant did not serve the contestee, nor cause the contestee to be served, with a notice of the time and place of the presentation of said petition to said court, or a judge thereof, ten days before the same was presented." Afterwards, on July 1, 1901, the contestee filed in the circuit court a motion to dismiss the contested election case, and assigned as grounds for the motion the following: "First, contestant did not give to contestee a notice of the time and place of the presentation of his petition herein ten days before the presentation of the same, as required by law; second, the petition of contestant does not set forth the points on which he will contest contestee's election and right to said office of assistant circuit attorney, and the facts which he will prove in support of such points; third, the petition of contestant does not give the names of the voters to whose qualifications as voters objections are made by contestant in said petition, and whose votes he intends to contest, but, in pretended compliance with the rule requiring the giving of such names, he has filed a copy of the registration lists of the city of St. Louis, containing practically the names of all the voters of said city, which is not a compliance with said rule." The circuit court overruled this motion on the 9th of July, 1901. Thereafter the petitioner applied to one of the judges of this court, in vacation, and...