Thompson v. Self

• Decision Date: 21 November 1938
• Docket Number: 4-5363
• Parties: THOMPSON v. SELF
• Court: Arkansas Supreme Court

122 S.W.2d 182

197 Ark. 70

THOMPSON v. SELF

4-5363

Supreme Court of Arkansas

November 21, 1938

Appeal from Greene Circuit Court; Neil Killough, Judge; affirmed.

Affirmed.

Jeff Bratton, for appellant.

Kirsch & Cathey, for appellee.

DONHAM J. GRIFFIN SMITH, C. J.; SMITH and MEHAFFY, JJ., dissent.

OPINION

DONHAM, J.

Appellant, Cicero Thompson, and appellee, G. S. Self, were rival candidates for nomination for the office of county and probate judge of Greene county in the 1938 primary election. According to the certificate of the county democratic central committee, it appears that Self received twenty-seven more votes than Thompson. Thompson instituted a contest by filing a complaint in pursuance of the statute in the Greene circuit court, alleging that many persons were permitted to vote whose names did not appear upon the poll tax list and that many others were permitted to vote who had attained their legal age prior to the election and who were not required to have a poll tax receipt and that these persons were permitted to vote without giving the necessary information to show that they were legally entitled to vote without a poll tax receipt. Thompson further alleged that he had reason to believe that he received votes in certain townships which were not counted for him; and that if the illegal votes in said townships were thrown out, it would result in his being the lawful democratic nominee for the office of county and probate judge.

It was necessary that Thompson, in compliance with the statute, support his complaint by the affidavit of ten qualified electors who were members of the democratic party, and that the complaint, so supported, should be filed within ten days of the certification of which complaint was made. Section 4738 of Pope's Digest as amended by act 123, § 6, Acts of 1935.

The filing of the required affidavit within the ten-day period is jurisdictional. If the affidavit is insufficient at the close of the ten-day period, the contestant will not be permitted after the expiration of that time to amend the affidavit so as to confer jurisdiction upon the trial court. Logan v. Russell, 136 Ark. 217, 206 S.W. 131; McLain v. Fish, 159 Ark. 199, 251 S.W. 686; Culpepper v. Mathews, 167 Ark. 253, 267 S.W. 773.

The right to question the sufficiency of the affidavit, although it may appear sufficient on its face, is given the contestee under the law governing primary elections. Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434.

The supporting affidavit attached to the complaint of appellant bears the names of eleven persons. At the beginning of the trial, appellant conceded that one of these was not a qualified elector and agreed that his name might be stricken from the affidavit. This was done and only ten names were left. The record shows that one of the affiants, Wilder Carpenter, did not believe that he was under oath at the time he signed the affidavit. He testified that there was nothing in his signing to lead him to believe that he was under oath. Another, C. E. Tennison, testified that he did not even know that the party before whom the affidavit was signed was a notary public until after he had signed the affidavit and left her office. Three others testified that they were called over the telephone by the notary public and asked if they had signed the affidavit. Two of them admitted that they had signed it and the third stated that he had not signed the affidavit, but that his son had signed it for him. It seems that all the notary would ask those whose names appeared as affiants was whether they had signed the affidavit and would swear to their signature.

In 1 R. C. L., p. 765, we find the following: "To make a valid oath or affirmation there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and an intention to administer it on the other; for, even though such intention actually did exist, if it was not manifested by an unambiguous act, perjury could not be based thereon. If the attention of the person making the affidavit is called to the fact that it must be sworn to, and, in recognition of this, he is asked to do some corporal act, and he does it, the instrument constitutes a statement under oath, irrespective of any other formalities."

In American Jurisprudence, Vol. 1, §§ 2, 13, 14, title, affidavits, the following statements appear: "An affidavit is any voluntary ex parte statement reduced to writing and sworn to or affirmed before some person legally authorized to administer an oath or affirmation. It is made without notice to the adverse party and without opportunity to cross-examine. . . . Under the definitions of an affidavit given above, it is essential to the validity of an affidavit that it be sworn to, or affirmed before, some officer authorized to administer oaths or affirmations. There must be something which amounts to the administration of an oath or affirmation; this requires concurrent action on the part of the affiant and an authorized officer. . . . The chief essentials of an affidavit are that it be in writing, and that it be sworn to, or affirmed before, some legally authorized officer."

In American Jurisprudence, Vol. 1, p. 943, § 13, we find the following statement of the law: "In making an affidavit, the law requires that the affiant and the paper sworn to be in the personal presence of the officer administering the oath. Accordingly, the oath of the affiant cannot be taken over the telephone."

In the recent case of Kirk v. Hartlieb, supra, this court quoted with approval the foregoing quotations taken from §§ 2, 13, 14 of the chapter on affidavits appearing in Vol. 1 of American Jurisprudence, and there specifically held that where signatures were obtained as they usually are in ordinary petitions and then carried to an officer authorized to administer oaths who signs his name to the jurat, such purported affidavit, in an election contest, is insufficient.

The trial court held that the supporting affidavit attached to appellant's petition was insufficient and sustained appellee's motion to dismiss the complaint. We agree that the trial court was correct in so holding. No error appearing, the judgment is affirmed.

GRIFFIN SMITH, C. J.; SMITH and MEHAFFY, JJ., dissent.

DISSENT BY: SMITH

SMITH J. (dissenting). The "Motion to Dismiss and Strike Out Plaintiff's Complaint" reads as follows: "Comes the defendant, G. S. Self, and moves the court to dismiss and strike out the complaint of the plaintiff herein and for ground thereof states that said complaint is not supported by an affidavit of at least ten reputable citizens of Greene county, Arkansas, as by law required, and that no ten signers thereof have the requisite qualifications to make the same. Wherefore, defendant moves the court to dismiss and strike out plaintiff's complaint and for all other further relief."

The original primary election law required that "The complaint shall be supported by the affidavit of at least ten reputable citizens" (§ 3772, Crawford & Moses' Digest), and several of our cases defined who "reputable citizens" were within the meaning of the statute. See, Bowers v. State, 155 Ark. 35, 243 S.W. 864, and cases there cited.

This section, 3772, Crawford & Moses' Digest, was amended by § 6 of act 123 of the Acts of 1935, p. 339. This amendatory section reads as follows: "Hereafter when any election contest has been filed by any candidate in any legalized primary election under §§ 3772 and 3773 of Crawford & Moses' Digest of the Statutes of Arkansas, it is hereby declared that the only inquiry which can be made into the qualifications of the supporting affiants mentioned in § 3772 of said Digest must be confined to the question as to whether or not the said persons are qualified electors and members of the party holding said primary election under the rules prescribed by said party so holding the election and have in fact made the affidavit provided by the said § 3772. Qualified elector is hereby construed to mean any person who is entitled to vote in said election or has assessed and paid a poll tax as required by law." Under this section the only qualifications imposed upon affiants are that they be qualified electors and are members of the party holding the primary election sought to be contested. They must, of course, make the affidavit. The motion to dismiss does not raise the question that the affidavits were not made. The objection is that ". . . no ten signers thereof have the requisite qualifications to make the same." There were eleven affiants, and it is conceded that one of these did not possess the requisite qualifications. Ten remained, and no attempt was made to show that any of these ten were not qualified electors and members of the party holding the said primary election. There was, therefore, no testimony to support the objection made to the supporting affidavit, and the motion to dismiss should have been overruled for that reason.

It is insisted, however, that several-- probably as many as five--of the alleged affiants did not in fact "make the affidavit." As we have shown, no such question was raised in the motion to dismiss, but, even so, the testimony is not sufficient, in our opinion, to sustain that contention.

Both parties cite, rely upon, and quote from the case of Cox v. State, 164 Ark. 126, 261 S.W. 303. The quotation from that opinion appearing in both briefs reads as follows: "So here we think if appellant signed the affidavit for the purpose of swearing to it, knowing that the clerk regarded his act of signing the affidavit as a method of making affirmation, the jury was warranted in finding that appellant was sworn. Fortenheim v. Claflin, Allen & Co., 47 Ark 49, 14 S.W. 462...