Williams v. Howard

• Citation: 192 Ky. 356
• Parties: Williams v. Howard. Williams v. Davis, Judge.
• Decision Date: 27 September 1921
• Court: Court of Appeals of Kentucky

192 Ky. 356

Williams v. Howard.

Williams v. Davis, Judge.

Court of Appeals of Kentucky.

Decided September 27, 1921.

Appeal from Harlan Circuit Court.

Petition for Writ of Mandamus.

JOHN D. CARROLL and HALL, JONES & LEE for appellant.

N. R. PATTERSON for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Dismissing appeal in the case first set out above, and granting writ of mandamus in the second.

B. M. Williams and M. W. Howard, the former styled appellant and the latter appellee, in the caption of this opinion, were, with others, candidates at the August primary election, 1921, for the Republican nomination for the office of county judge of Harlan county, and the canvass by the county board of election commissioners of the votes returned from the several precincts of the county by the election officers thereof resulted in its declaring Howard the Republican nominee for the office in question, and awarding him the certificate of such nomination. Thereupon Williams, claiming to have received a majority of the legal Republican votes cast in the primary and, by reason thereof, to be entitled to the Republican nomination for the office of county judge, by the due filing and service upon Howard within five days after the issuance to him of his certificate of nomination of the required statutory notice, particularly setting forth the grounds therefor, instituted against the latter in the Harlan circuit court a contest attacking his right to such nomination and asserting his own right to same. The filing of the notice of contest was accompanied by the filing of a petition setting forth the same grounds of contest contained in the notice.

Following the service upon him of the notice of contest the contestee, Howard, within the time required by the statute for responding to same, filed thereto a pleading styled: "Special Demurrer. General Demurrer. Motion to Strike. Response to Grounds of Contest and Counter Contest and Grounds Thereof." In the beginning paragraph of this pleading it was stated, however, that the contestee entered his appearance only for the purpose of insisting on his special demurrer to the notice of contest and petition of the contestant which had been filed with it. The special demurrer went to the jurisdiction of the court and the judge thereof, and was, upon the submission of the proceeding thereon, sustained by the court, it being, in substance, declared by the order manifesting this ruling, without stating the reasons therefor, that neither the Harlan circuit court nor the judge thereof had jurisdiction to "hear and determine the contest attempted to be set up in the petition and notice.

An exception was taken by the contestant, Williams, to this ruling and an appeal prayed and granted. He has filed in this court a transcript of the record from the circuit court as in taking an appeal and asks of us a review and a reversal of the order of the circuit court sustaining the special demurrer to its jurisdiction.

We think it clear that an appeal will not lie from this order, therefore it cannot be reviewed, because it is not a final order, as it does not in terms or effect dispose of or end the contest. "A final judgment or order is such as at once puts an end to the action by declaring the plaintiff has either entitled himself, or has not, to recover the remedy sued for; it disposes of the merits of the case, and settles the rights of the parties under the issues made by the pleadings, or disposes of the case and puts the parties out of court." Harrison v. Stroud, 150 Ky. 797; Alexander v. DeKermel, 81 Ky. 345; Comlth. v. L. & N. R. R. Co., 16 R. 484; Maxwell v....