Walton v. Rucker
| Decision Date | 26 October 1936 |
| Docket Number | 4-4552 |
| Citation | 97 S.W.2d 442,193 Ark. 40 |
| Parties | WALTON v. RUCKER |
| Court | Arkansas Supreme Court |
Appeal from Saline Circuit Court; H. B. Means, Judge; reversed.
Judgment reversed and cause remanded
McDaniel McCray & Crow, for appellant.
Kenneth C. Coffelt and Ernest Briner, for appellee.
Appellant and appellee were candidates for the office of sheriff and collector of Saline county at the primary election held August 11, 1936. A certificate of nomination was issued to appellee and on August 22, 1936, after the certificate of nomination was issued, appellant filed his complaint in the circuit court of Saline county contesting the certificate of nomination on the ground that the appellee did not receive a majority of the legal votes in said primary. This complaint was verified in accordance with the statute by more than ten persons purporting to be qualified to make the affidavit. The complaint, with the supporting affidavit, was filed in the office of the clerk of the circuit court on August 22, 1936.
On August 31, 1936, the appellee filed his motion to quash service of summons and the return thereof. On September 7, following, the appellee filed a demurrer to the complaint and also, in a separate pleading, a motion to make the complaint more definite and certain. On the said September 7, 1936, nine of the persons who signed the affidavit attached to the complaint, filed their written motion requesting that their names be stricken from the affidavit. On the same date appellee filed his motion to dismiss the complaint on the ground that the complaint was not supported by the affidavit of ten qualified electors and that the affidavit had been obtained by misrepresentation, fraud and deceit. On September 21, 1936, the court made an order reciting that the cause was presented on motion to quash service of summons, motion to withdraw certain names from the affidavit, demurrer and motion to make more definite and certain. The motion to quash service was overruled and the motion of the nine persons, signers of the supporting affidavit to the complaint, that their names be stricken from the same sustained. The court found that after these names were stricken from the affidavit, less than ten qualified voters remained signatory to the affidavit, and thereupon dismissed the complaint. Objections and exceptions were properly saved to the action of the court and preserved in motion for a new trial filed in apt time. The motion for a new trial was overruled and this appeal followed.
The trial court did not rule on the demurrer or motion to make more specific and certain. Therefore, the sole question we can properly consider is the action of the court in permitting the withdrawal of the names from the supporting affidavit, which, after careful consideration, we have concluded was error on the part of the learned trial judge. This action appears to have been based upon the theory that the affiants were entitled to control the course of the litigation by an action tantamount to a nonsuit or dismissal, because it was by reason of their signatures to the affidavit that the court acquired jurisdiction to hear and determine the contest. This theory seems to be grounded on the provisions of § 1262, Crawford & Moses' Digest, authorizing a plaintiff to nonsuit or dismiss a complaint and the declaration made in the case of Terry v. Harris, 188 Ark. 173, 64 S.W.2d 324, to the effect that by signing the affidavit the affiants made themselves parties to the litigation. These authorities give no support to the conclusion reached by the court below. The right to dismiss an action rests only with the "plaintiff." In Terry v. Harris, supra, it was held that by signing the affidavit required in an election contest and alleging their eligibility to sign the same, the affiants became parties to the action to the extent that it constituted a waiver of a privilege of having their ballots kept secret where inquiry was made as to their eligibility. There was no intimation given in that decision that the affiants were clothed with the power conferred on the plaintiff to nonsuit or dismiss. Although the affiants became parties to the action by their act of signing the affidavit they became, in no sense, parties "plaintiff." A plaintiff is such an one as has and asserts a cause of action against another. The right of action to contest the result of a primary election as certified by the election authorities given by § 3772, Crawford & Moses' Digest, is to an unsuccessful candidate who feels aggrieved and who desires to contest the nomination of his opponent. The further provision requiring the affidavit of ten citizens confers no cause of action upon them, but is merely a prerequisite to the filing of a complaint, and serves to confer upon the court the jurisdiction to hear and determine the contest.
In further justification of the action of the court in dismissing appellant's complaint, our attention is called to the fact that he did not offer testimony tending to establish the genuineness of the signatures of the affiants or their eligibility to sign the affidavit. This contention is without merit, and obviously so, for...
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Reed v. Baker
...S.W. 30. Under our statute, the required affidavit is jurisdictional. See Brown v. Anderson, 210 Ark. 970, 198 S.W.2d 188; Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442; Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434. The requisites of an affidavit are that it be a voluntary written statement,......
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Yell County Telephone Co. v. Taylor
...was not dismissed. Moreover, under ARCP Rule 41(a), the right to a voluntary nonsuit rests solely with plaintiffs. See Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442 (1936). Respondent was thus limited to the relief requested by plaintiffs, who clearly and unequivocally asked Respondent to di......
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