Whitcomb v. Chase

• Decision Date: 06 February 1909
• Docket Number: 15,505
• Citation: 119 N.W. 673,83 Neb. 360
• Parties: WALDO E. WHITCOMB, APPELLANT, v. HIRAM CHASE, APPELLEE
• Court: Nebraska Supreme Court

119 N.W. 673

83 Neb. 360

WALDO E. WHITCOMB, APPELLANT, v. HIRAM CHASE, APPELLEE

No. 15,505

Supreme Court of Nebraska

February 6, 1909

APPEAL from the district court for Thurston county: ABRAHAM L SUTTON, JUDGE. Affirmed.

AFFIRMED.

Howard Saxton, Thomas L. Sloan, Curtis L. Day, J. H. Van Dusen, L J. Te Poel and Waldo E. Whitcomb, for appellant.

Hiram Chase and R. E. Evans, contra.

OPINION

BARNES, J.

Waldo E. Whitcomb and Hiram Chase were rival candidates for the office of county attorney of Thurston county at the general election held in November, 1906. Chase was declared elected and has served out his term. Whitcomb contested his election by proceedings instituted in due time in the county court, where he had judgment. Chase appealed to the district court, where, after a protracted trial, the judgment of the county court was reversed, and his election was confirmed. Whitcomb thereupon appealed to this court, and asks for a reversal of that judgment. For convenience he will be called the plaintiff, and Chase will hereafter be called the defendant.

The plaintiff contends that the district court never obtained jurisdiction of the case, and its judgment is therefore void. It appears that the transcript from the county court, as copied by the clerk of the district court, is without a certificate, or, in other words, is not duly authenticated, and it is claimed that the district court never obtained jurisdiction of the case. The defendant has brought here a certified copy of what he alleges to be the last page of the transcript of the judgment of the county court which contains a proper certificate, and alleges that the same was a part of his transcript when it was filed in the district court, and that it has in some way become detached therefrom and asks leave to file it as a part of the transcript in this court. To this the plaintiff strenuously objects. In our view of the matter, it is unnecessary for us to determine this question. It appears that plaintiff made no objection to the jurisdiction of the district court; that both parties treated the case as though the appeal was properly perfected, and no suggestion was made, or appears in the record, that the transcript of the judgment of the county court was not properly certified at the time it was filed, and when the trial in the district court took place. Therefore the plaintiff is not in a position at this time to object to the jurisdiction of that court. A like question was before us in Coleman v. Spearman, Snodgrass & Co., 68 Neb. 28, 93 N.W. 983, where it is said: "Although the filing of a duly authenticated transcript is required in order to perfect an appeal from the county court to the district court, and although the transcript filed for such purpose is not thus authenticated, yet, if the parties proceed in the district court on the theory that the appeal has been perfected, they will not be heard to question the sufficiency of such transcript in this court." Plaintiff strenuously contends that this rule should not be applied to the case at bar. It is argued that the district court has no original jurisdiction in cases of this kind; that it only obtains jurisdiction by appeal, and if the appeal is not properly perfected that court has no jurisdiction. In support of this proposition many cases are cited which hold that jurisdiction of the subject matter of an action cannot be conferred by consent. That this is the well-established rule cannot now be questioned; but we are of opinion that it has no application to the facts of this case. Our statutes relating to the contest of elections provide for an appeal from the judgment of the county court, and declare that the proceedings shall be assimilated to those in an action as far as practicable. The district court having been given appellate jurisdiction of the subject matter of such contests, mistakes and irregularities in perfecting an appeal will not deprive it of such jurisdiction. Defects and irregularities in perfecting an appeal may be waived by the parties, and failure to make seasonable objection to the jurisdiction of the district court will constitute a waiver. In such case an objection to the jurisdiction made for the first time in this court comes too late, and will not be considered. We are therefore of opinion that the district court had jurisdiction of the subject matter and the parties, and had power to pronounce the judgment complained of.

This brings us to the consideration of the merits of this controversy. It appears that plaintiff's ground of contest is based on the removal of the polling place in Omaha precinct, which had been designated in the notice of election as the "Lamson or Quinton schoolhouse," to the village of Walthill in said precinct. And it is alleged that by such removal a large number of electors who would have voted for the plaintiff but for such removal were deprived of their right to vote, and that a sufficient number of voters were deprived of that right to change the result of the election.

The testimony discloses that during the two years previous to the general election in question there had grown up in that precinct a thriving village called Walthill, which is located about three miles from the Lamson or Quinton schoolhouse that the village...