Wilson v. Matson

• Decision Date: 09 July 1923
• Docket Number: 23451
• Citation: 194 N.W. 735,110 Neb. 630
• Parties: WADE A. WILSON, APPELLANT, v. CHARLES E. MATSON, APPELLEE
• Court: Nebraska Supreme Court

194 N.W. 735

110 Neb. 630

WADE A. WILSON, APPELLANT, v. CHARLES E. MATSON, APPELLEE

No. 23451

Supreme Court of Nebraska

July 9, 1923

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

C. A Sorensen and F. L. Bollen, for appellant.

Peterson & Devoe, contra.

Heard before MORRISSEY, C. J., LETTON and GOOD, JJ., BLACKLEDGE COLBY and REDICK, District Judges.

OPINION

GOOD, J.

Appellant and appellee, who will be hereinafter referred to, respectively, as contestant and incumbent, were rival candidates for the office of county attorney of Lancaster county, Nebraska, at the general election held in November, 1922. The votes cast at said election were officially canvassed on November 15, 1922, and the results showed that incumbent received 304 more votes for said office than were cast for contestant. On November 28, 1922, contestant filed his complaint in the county court of Lancaster county, to contest the election of the incumbent to said office, and summons was issued thereon on December 2, 1922. On December 7, 1922, and more than 20 days after the official canvass of the votes, incumbent filed a motion to dismiss the proceedings, for the reason that contestant had not filed a bond as required by section 2070, Comp. St. 1922. On December 9, 1922, contestant filed a bond, which was approved by the court, and incumbent's motion to dismiss was later overruled. A trial in the county court resulted favorably to incumbent. The contestant appealed to the district court. Thereupon, incumbent filed in the district court a motion to dismiss the appeal for want of jurisdiction, because of the failure of contestant to file a bond in the county court within the time required by statute, which motion was sustained, and judgment entered dismissing the appeal. Contestant brings the case to this court to review the judgment of the district court dismissing his appeal.

Two questions are presented by this appeal: (1) Does section 2070, Comp. St. 1922, when properly construed, require contestant, in an election contest, to file a bond within 20 days after the official canvass of the votes? (2) Is the filing of such bond within 20 days after the votes are canvassed necessary to confer jurisdiction on the court to hear and determine the contest?

Section 2070 provides: "The contestant shall file in the proper court, within 20 days after the votes are canvassed, a complaint, setting forth the name of the contestant, and that he is an elector competent to contest such election, the name of the incumbent, the office contested, the time of the election, and the particular causes of contest, which complaint shall be verified by the affidavit of the contestant that the causes set forth are true as he verily believes. The contestant must also file a bond, with security to be approved by the clerk of the court or county judge, as the case may be, conditioned to pay all costs in case the election be confirmed, the complaint dismissed, or the prosecution fail."

Contestant argues that the statute, properly construed, does not fix any time within which the bond for costs must be filed, and, inferentially, that the provision relating to the filing of such a bond is directory only; that the giving of a bond is intended for the benefit of incumbent, and that none need be filed unless demanded by him. Contestant cites Nicholls v. Barrick, 27 Colo. 432, 62 P. 202, as sustaining his position. There is language in the opinion apparently supporting this position, but a careful examination of the case shows that such language is dictum. In that case, a bond had been given within the prescribed time, but it did not comply with the statutory requirements. Its sufficiency was not attacked until after issue had been joined. The court held the motion to dismiss, because contestant had failed to file the bond provided by law, was in the nature of a plea in abatement, which could not be interposed after answering to the merits. The case is therefore not in point.

1. The statutory provision, "the contestant must also file a bond," is in form, and is clearly intended to be mandatory. The question is, within what time it must be filed. The purpose of the legislature was to protect the incumbent and make contestant liable for all costs. To effect its purpose fully, the bond should be given before any substantial part of the costs has been incurred. The word "also," as used in the statute, is significant and has a definite meaning. Some of the definitions given the word by lexicographers are: Too; in addition; likewise; in like manner. Had the word been used in the sense of "too," or "in addition," it would be mere surplusage; but, used in the sense of "likewise," or "in like manner," it makes it clear that the bond should be filed in the same manner as the complaint, i. e., "shall file in the proper court, within 20 days after the votes are...