Stone v. Edmondson

• Decision Date: 06 April 1935
• Parties: STONE v. EDMONDSON et al.
• Court: Tennessee Supreme Court

80 S.W.2d 665

168 Tenn. 698

STONE v. EDMONDSON et al.

Supreme Court of Tennessee.

April 6, 1935

Appeal from Chancery Court, Marshall County; Thomas B. Lytle Chancellor.

Suit by W. R. Stone against W. T. Edmondson and another. From an order overruling a demurrer, defendant appeals.

Reversed and bill dismissed.

W. C Cherry and A. V. McLane, both of Nashville, and Braly Craig of Lewisburg, for appellant.

Cooper & Cooper, of Shelbyville, for appellees.

GREEN Chief Justice.

This was a suit by a citizen and taxpayer to restrain one W. T. Edmondson from assuming the office of county judge of Marshall county to which office he appeared, on the face of the returns, to have been elected August 2, 1934. The bill charged, for reasons set out, that the election was void. The chancellor denied the injunction, and Edmondson was inducted into the office. The bill, however, was sustained as having been properly filed, as a challenge of the validity of the election. From an order overruling defendant's demurrer, the chancellor permitted an appeal.

Among other things, the bill averred that Edmondson's plurality of votes was only 34; that in the Cornersville precinct more than 100 illegal voters (naming them) participated in the election, and that it was impossible to tell for whom such voters cast their ballots; that accordingly the election in this precinct was void, and, if the vote of this precinct were thrown out, it would be impossible to tell which candidate received the highest number of legal votes in the county, and the whole election was accordingly invalid.

A point was made upon the jurisdiction of the chancellor to entertain this suit. We think, however, this matter was settled in Maloney v. Collier, 112 Tenn. 78, 83 S.W. 667, 673.

Section 2123 of the Code is as follows:

"Should a candidate for the office of judge of the circuit, common law, and chancery, or criminal court, or for the office of district attorney, desire to contest his election, he shall, within twenty days after such election, present a sworn statement of the grounds of contest to the chancellor."

Section 2114 and Section 2115 of the Code provide for contests for the office of "supreme or appeals judge" and for contests for the office of chancellor, and section 2116 of the Code is in these words:

"Contests for all other judicial offices, and of district attorneys are tried before the chancellor of the division in which such election was held; and, if such election was partly in one chancery division and partly in another, then before the chancellor in either division; and, if there be no chancellor in that division, before the chancellor of the nearest division having a chancellor."

The office of county judge is a judicial office (Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036), and the chancellor before whom this suit was tried was the chancellor of the division in which the election was held.

As heretofore stated, and as shown by the bill, the election herein attacked was held on August 2, 1934. The complainant's bill was filed on August 31, 1934--twenty-nine days after the election. As set out above, section 2123 of the Code provides that a candidate for the office of judge, desiring to contest the election, shall, "within twenty days after such election, present a sworn statement of the grounds of contest to the chancellor."

Defendant's demurrer makes the further point that section 2123 of the Code controls this proceeding and that this suit was filed too late to be entertained.

There is no doubt but that the suit would be barred by the twenty days' limitation had it been brought by a candidate for the office of county judge instead of having been brought by a citizen and taxpayer, not a candidate. Harmon v Tyler, 112 Tenn. 8, 83...