Wilhoit v. Liles
| Decision Date | 12 October 1945 |
| Citation | 300 Ky. 564,189 S.W.2d 851 |
| Parties | WILHOIT v. LILES et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Lewis County; Harvey Parker, Jr., Judge.
Action by Lovel H. Liles against Roy Wilhoit and the County Board of Election Commissioners to obtain a recount of the votes cast in the primary election for the Republican nomination for Commonwealth Attorney, and to contest the election. From a judgment for plaintiff, defendant named appeals.
Affirmed.
A. W. Mann, of Ashland, and Woodward, Dawson, Hobson & Fulton, of Louisville, for appellant.
D. G Diamond, of Vanceburg, and Lovel H. Liles, of Greenup, for appellee.
In the primary election held on August 4, 1945, Roy Wilhoit, L. H Liles and T. E. Nickel, were candidates for the Republican nomination for Commonwealth Attorney of the Twentieth Judicial District, composed of the counties of Lewis and Greenup. Wilhoit was the victor over Liles by a margin of 11 votes and Nickel ran last. Within the time prescribed by statute, Liles filed this action against Wilhoit and the county board of Election Commissioners, under KRS 122.060 asking a recount. Included in the petition were averments that Wilhoit had violated the Corrupt Practices Act, KRS 123.010 et seq., as KRS 122.060 permits a petition for a recount to be joined with an action to contest an election. The answer was merely a traverse. No proof was taken on the contest branch of the case and we are concerned only with the recount.
A recount of the ballots in all precincts in both counties resulted in a judgment declaring Liles the nominee by 56 votes and the Election Commissioners of the two counties were ordered to reconvene and certify the returns of the recount of the vote of their respective counties to the State Election Commission. The judgment was entered on August 28 and Wilhoit filed his supersedeas bond within the time provided in KRS 122.040 and prosecuted an appeal to this court which raises but two questions: (a) Whether the judgment should be reversed for the trial judge's failure to vacate the bench upon affidavit filed by Wilhoit; (b) was the integrity of the ballots established by Liles so as to entitle him to a recount?
Before reaching these questions, we are met with Liles' motion to dismiss the appeal because the transcript of the evidence was not filed in this court within 10 days after the entry of the judgment as is provided in KRS 122.060. This motion must be overruled.
The judgment entered August 28 gave Wilhoit until September 15 to prepare and file his bill of exceptions wherein he incorporated in the record the testimony heard orally before the trial judge and reported by the official stenographer. Wilhoit filed his entire record here on September 5 with the exception of the transcript of the evidence. On September 6, the tenth day from the entry of the judgment, he filed a motion asking the Chief Justice to allow him until September 17 to file a transcript of the evidence, as he had been unable to get the trial judge to sign his bill of exceptions. This time was granted and he filed this transcript on September 11.
Liles insists that neither the trial court nor this one can extend that time for filing the record here beyond the ten days allowed by statute; that no motion for new trial was filed; and that after the supersedeas bond was executed the trial judge could enter no further orders such as approving the bill of exceptions on September 10.
Section 738 of the Civil Code of Practice provides the time for filing a record here on an ordinary appeal, unless for cause shown that time is extended by us. In construing this section in Cline v. Cline, 198 Ky. 585, 249 S.W. 348, it was said that the time for filing the transcript is mandatory, and when no part of same has been filed in the required time there can be no extension; but if an incomplete record has been filed in good faith within the prescribed time, and the ends of justice will be served by allowing an additional or supplemental transcript to be filed, the court should permit it upon the proper showing. Under the Cline opinion, as well as under our rule 3, subsec. 14, this court may before submission allow an additional part of the record to be filed if it deems such to be necessary in the furtherance of justice, although no motion is made for an extension. If that can be done without a motion, certainly we can grant additional time on motion and for cause shown for filing a supplemental record where part of the record has been in good faith filed in time.
The right to a recount or to contest an election, and the procedure to be followed, is purely statutory. It is provided in KRS 122.030 that the court shall hear and determine all questions of law and fact without a jury, and that the proof may be taken orally or by deposition. No provision is made for a motion for a new trial, hence it is not necessary that such a motion be made in order to perfect an appeal.
The execution of a supersedeas bond does not prevent the trial judge from subsequently approving a bill of exceptions. Otherwise, a litigant with a judgment rendered against him at one term who asked and was granted until a day certain in the next term to file his bill of exceptions, would find himself in the anomalous position of being unable to prosecute his appeal if he protected himself from an execution by superseding the judgment.
The substance of the affidavit which Wilhoit filed to swear Judge Parker off the bench is that the Judge was an unsuccessful candidate in the primary, was violently opposed to Wilhoit, personally and politically, and on many occasions expressed a deep-seated, violent, and malicious dislike for and animosity toward him, both personally and as a candidate, and that the Judge was active in advocating the candidacy of Liles, which he openly expressed. It further averred that the Judge was very ill and debilitated and of such mental condition as to be unable to undergo the strain of the trial, and could not and would not render a fair judgment therein.
Appellant argues that Judge Parker exhibited his animus by filing a response to this...
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