The State ex rel. Folk v. Spencer
| Decision Date | 18 June 1901 |
| Citation | 63 S.W. 1118,164 Mo. 48 |
| Parties | THE STATE ex rel. FOLK v. SPENCER |
| Court | Missouri Supreme Court |
Rule made absolute.
John H Overall and Charles W. Bates for relator.
(1) The failure of the contestant to serve contestee with a ten days' notice of the time and place of presentation of his petition, is fatal to the action. Secs. 7057, 7058, 7059 7060, 7061, 7062, 7063, 7064, 7069 and 7070, R. S. 1899. These provisions are not inharmonious, and since notice of presentation of the petition is plainly required, the failure to give it is vital. Costello v. St. Louis Circuit Court, 28 Mo. 259; Wilson v. Lucas, 43 Mo. 293; Higbee v. Ellison, 92 Mo. 13. (2) The contestant should not only have given the notice required by statute but should have alleged it and set it out in his petition in such terms as to enable the court to determine whether the notice was sufficient. 14 Ency. Pleading and Practice "Notice," p. 1071; Wade on Notice, secs. 1393, 1396. Where notice is to be given in a particular time it ought to appear that such notice was given in due time. Comyn's Digest, "Pleader," c. 74; Wade on Notices, secs. 1163, 1171; Paine on Contested Elections, sec. 1105; Williams v. Monroe, 125 Mo. 584; Wilson v. Railroad, 108 Mo. 596; Railroad v. Hoereth, 144 Mo. 148; Anderson v. Anderson, 55; Mo.App. 274; Leach v. Cargill, 60 Mo. 316; Meyer v. Christian, 64 Mo.App. 203; Construction Co. v. Jones, 60 Mo.App. 1; Miller v. Hofman, 26 Mo.App. 199.
W. E. Fisse, G. A. Finkelnburg and Clinton Rowell for respondent.
(1) The four sections of the Act of 1899 appear as sections 7062 to 7065, both inclusive, in the Revised Statutes of 1899. The provisions of the old law, to-wit, section 4739, Revised Statutes 1889, appear in the Revised Statutes of 1899, as section 7066. This section provides that the provisions of sections 7057 and others concerning contests and proceedings therein, in the Supreme Court, 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. It is clear that the scheme of procedure embodied in the section thus quoted, is entirely inconsistent with the scheme of procedure provided for in the Act of 1899. Under the old law, no summons or process issuing out of a court was necessary. The procedure in the case of a contest for circuit judge, or any of the other enumerated offices, was substantially the same as in the case of a contested election relating to any municipal or county office. (2) By answering, the petitioners have certainly waived the right to question the sufficiency of the service, and by the cross-allegations of the answers filed they have certainly admitted the jurisdiction of the court.
In Banc
Prohibition.
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, vs. Joseph W. Folk, contestee, for the office of circuit attorney of said city. The order is similar to the order considered in State ex rel. Funkhouser v. Spencer, 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 vs. 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, ten days before it was presented, as required by section 7057, Revised Statutes 1899.
The provisions of the statutes relied on by relator are these: Section 7069, Revised Statutes 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 thirty 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 Appeals, Superintendent of Public Schools, Secretary of State, State Auditor, State Treasurer or Attorney-General, 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 forty days after the election, but the case is to be tried before the circuit judge of an adjoining circuit, whose place of residence is nearest to the residence of the contestee. Upon the filing of the petition a summons issues, as near as may be the same as an ordinary summons. The contestee is allowed thirty days after being served to file an answer, and upon the filing of the answer the judge aforesaid becomes possessed of the cause and has jurisdiction to hear and try the case, and may appoint a commissioner to take testimony, and the losing party is given the right of appeal to the Supreme Court. But the provisions of the statute in reference to proceedings to contest the election of State officers are made applicable to the proceedings in a contest for the office of circuit attorney. Among those provisions is that contained in section 7057 that: "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." The provisions hereinbefore set out (sections 7062 to 7065, inclusive) are new...
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