180 Ky. 413 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming as to appellee, Delph, and reversing as to appellee, Howard.
At the election held for trustee in sub-district No. 1, educational district No. 1, of Bell county, on the first Saturday of October, 1917, James Doss and Tyrus Howard were candidates, and the result was that Howard received fifty-nine votes and Doss received fifty-six votes. The election was held on the sixth day of October and this action was instituted by Doss on the eighth day of October, against Howard and Simon Delph, the superintendent of schools of Bell county. The summons was served on the ninth day of October and answer was not filed by either Howard or Delph within twenty days after the service of the summons, but on the 17th day of November, thereafter, which was thirty-nine days after the service of the summons, they filed a general demurrer to the petition. The appellant, Doss, "objected to the filing of the demurrer, but his objections were overruled. On the first day of March, 1918, the court rendered a judgment, by which the demurrer was sustained, and the appellant refusing to plead further, the petition was dismissed, to all of which Doss objected and reserved exceptions, and prayed an appeal to this court, and filed a copy of the record herein on the 29th day of March.
The appellant insists that the court was in error in permitting the appellees to file a demurrer to the petition, over his objection, at a time, which was more than twenty days after the service of the summons, and in this contention we concur. The evident purpose and intention of the legislative authority, in enacting the statutes, which provide for and govern contested elections, was to provide a plan for the trial and determination of proceedings of this kind, expeditiously, to the end that one duly selected to-fill an office should be permitted to perform its duties and to receive the emoluments, and that the interested communities should be secure from protracted disturbances, as the result of the contest of elections and the subsequent uncertainty of knowing the
The character of a judgment which should be rendered is determined by the sufficiency of the facts alleged in the petition or deemed to exist because of the default and the application of the law to such facts. Of course, if the averments of the petition were not sufficient to show a cause of action, the appellant was not entitled to have the relief sought by him. He was only entitled to the relief within the fair scope of the allegations and prayer of the petition. The petition, while inartificially
The petition, it is true, alleges that the appellee, Howard, will qualify as trustee unless restrained and prayed that he be enjoined from so doing. The allegation was surplusage in a petition for the contest of ah election, and 'the prayer was for something to which appellant was not entitled. Where one has received a certificate of election to an office from the proper authorities, it constitutes prima facie evidence of his title to the office and an injunction will not lie to restrain him from exercising the functions of the office pending a contest, as to whether or not the holder of the certificate was really elected. Courts of equity are not invested with authority by the statutes providing for contested elections to proceed by writ of injunction for the determination of the right to the office and they have no inherent authority to do so. 9 R. C. L. 1152; 10 A. & E. Ency. L. 761; Harrison v. Stroud, 129 Ky. 193, Wilson v. Tye, 122 Ky. 508. The
The action was properly dismissed as to the appellee, Delph. The averments of the petition affecting Delph are to the effect, that unless restrained by injunction that he will issue a certificate of election to his co-defendant, Howard, and the prayer of the petition with reference to him is for an injunction restraining bim from issuing such certificate of election. As county superintendent, he was without authority to issue or grant a certificate of election to Howard, and it would have been without any effect if he had done so, and besides, Howard had already received a certificate of his election from the authorities authorized to grant it. Sections 92 and 109, article VIII, chapter XXIV, session acts, 1916.
The judgment is therefore affirmed as to the appellee, Delph, but is reversed as to the appellee, Howard, and remanded with directions to proceed in conformity to this opinion.