Thompson v. Emmert

• Decision Date: 26 January 1932
• Citation: Thompson v. Emmert, 242 Ky. 415, 46 S.W.2d 502 (Ky. Ct. App. 1932)
• Parties: THOMPSON v. EMMERT.
• Court: Kentucky Court of Appeals

46 S.W.2d 502

242 Ky. 415

THOMPSON v. EMMERT.

Court of Appeals of Kentucky

January 26, 1932

As Modified on Denial of Rehearing March 15, 1932.

Appeal from Circuit Court, Monroe County.

Election contest between Earl Thompson and Rester Emmert. From a judgment adjudging the election of Rester Emmert, Earl Thompson appeals.

Affirmed.

Lawrence & Carter, of Tompkinsville, for appellant.

B. F Denham, of Tompkinsville, for appellee.

WILLIS J.

This is a contest over the office of trustee of the Rush Point common school district No.

59, in Monroe county, Ky. Earl Thompson and Rester Emmert were the candidates, and it was determined in the circuit court that Thompson had received 32 and Emmert 35 votes. Hence the election of Emmert was adjudged, and Thompson has prosecuted an appeal.

The case in this court has been reduced by the concessions of the parties to a determination of the validity of ten votes counted for Emmert. The decision depends upon the residence of the ten persons who were permitted to vote. The statute (Ky. St. § 1478) provides that the residence of a person for the purpose of voting shall be deemed to be where his habitation is, and to which, when absent, he has the intention of returning. No person shall lose his residence by absence for temporary purposes merely; nor shall he obtain a residence by being in a county or precinct for temporary purposes without the intention of making it his home. By removal to another state or county with intention to make his permanent residence there, he loses his former residence. So also he loses his residence here by residing in another state with the intention to remain there an indefinite time, even though he may have had the intention to return here at some uncertain future time. The place where the family of a married man resides shall generally be considered his residence, unless the family so resides for a temporary purpose. If the family of a married man is located permanently in one place, and he transacts business in another, the former place shall be his residence. Ky. St. § 1478. The fact that a person owned property in another school district and voted therein did not disqualify him from voting in the district where he had a legal residence. Penny v McRoberts, 163 Ky. 313, 173 S.W. 786; Ison v Watson, 169 Ky. 150, 183 S.W. 468. A mere floating intention to establish a residence at some future time without any present means of determining or approximating such time is not sufficient. Saunders v. Flemingsburg, 163 Ky. 680, 174 S.W. 51; Baker v. Baker, Eccles & Co., 162 Ky. 683, 173 S.W. 109, L. R. A. 1917C, 171; Elam v. Maggard, 165 Ky. 733, 178 S.W. 1065; Matney v. Elswick, 242 Ky. 183, 45 S.W.2d 1046, this day decided; Stewart v. Wurts, 143 Ky. 39, 135 S.W. 434.

If an absence depends upon the completion of some temporary task, or upon the discharge of some duty of a temporary nature, the time fixed for a return to the domicile is sufficiently definite. Keeping these principles in mind, we come to consider the particular facts presented by this record.

The vote of Hubert Baskett is challenged. His mother had died and his father had remarried while he was an infant. He then made his home with his married sister, who lived in the Rush Point school district. There is no substantive evidence to the contrary, but the appellant relies upon an affidavit made by Hubert Baskett in an investigation before the Tompkinsville police court in which he stated that he was residing with his brother in another school district. The affidavit tends to contradict the testimony of Hubert Baskett, but he is corroborated by the testimony of his sister and his two brothers. The statements...