Wilkerson v. Lee, 4 Div. 997.

• Decision Date: 12 May 1938
• Docket Number: 4 Div. 997.
• Citation: 236 Ala. 104,181 So. 296
• Parties: WILKERSON v. LEE.
• Court: Alabama Supreme Court

181 So. 296

236 Ala. 104

WILKERSON v. LEE.

4 Div. 997.

Supreme Court of Alabama

May 12, 1938

Appeal from Circuit Court, Houston County; D. C. Halstead, Judge.

Contest of an election by Mrs. Ellen Lee against A. D. Wilkerson. From a judgment for contestant, contestee appeals, and appellee moves to dismiss the appeal. Motion to dismiss overruled.

Judgment affirmed.

John W Rish and Lawrence Oakley, both of Dothan, for appellant.

W. L Lee, Alto V. Lee, III, and O. S. Lewis, all of Dothan, for appellee.

BOULDIN Justice.

The appeal is from a judgment of the circuit court in an election contest; is taken under section 566 of the Code. Section 567 of the Code, requiring "bond and security for costs" on such an appeal, is sufficiently complied with by the filing and approval of the usual security for costs with sureties, to be certified with the record that judgment for costs may be rendered thereon in the appellate court if the appeal fails. The appeal suspends the execution of the judgment. The only condition specified is payment of costs. No other supersedeas bond is contemplated. The motion to dismiss the appeal for want of a supersedeas bond is overruled.

The parties were opposing candidates for the office of councilmen in ward 5, of the town of Columbia, in the municipal election of September 21, 1936. The election returns showed the election of appellant by a vote of 64 to 63.

The trial court heard the evidence orally. After deducting votes held to have been illegally cast and counted for each candidate and adding the votes held to have been legally tendered, but erroneously rejected by the election officers, the court found the contestant entitled to 63 votes, and the contestee 58.

The appellant challenges the right of contestant to offer evidence touching a supplemental list of voters. After the parties had furnished their respective lists of alleged illegal votes received and legal votes rejected pursuant to Code, § 551, and the trial was entered upon, the hearing was adjourned over some four weeks.

In the interim, and more than ten days before the day set, the contestant gave notice of a supplemental list, and over objection of the contestee evidence was admitted thereon. There was no error in this ruling.

The only requirement of section 551 is that the notice therein defined shall be given the opposing party at least ten days before the taking of testimony in reference to such votes. After a trial is entered upon, the court may exercise a discretion as to prolonging the hearing or adjourning over; but, when this is done, it is contemplated the parties may produce evidence touching any voter whose name is furnished the opposing party ten days or more before such evidence is offered.

The right of the qualified electors to choose their public officers, a vital principle in democratic institutions, is the chief concern in such contests.

The vote of Mrs. J. T. Bell, thus shown to be illegal, and to have been cast and counted for contestee, there was no error in deducting same from his vote.

A voter having acquired a legal residence, been duly registered as a voter of the county and precinct or ward, and paid his poll tax therein for the year in which the election is held, may retain such residence until he has abandoned and removed therefrom with the intent to become a resident elsewhere. Temporary absence from one's residence for the purposes of his employment and the like, without the intent to abandon the home town and acquire a domicile elsewhere permanently or for an...