| Ky. Ct. App. | Oct 8, 1913
Opinion op the Court by
Reversing.
The appellant, L. T. Flannery, and appellee, Tillman Shanks, were candidates, at the primary election of August 2, 1913, for the Republican nomination for the office of sheriff in the county of Lee. The board of election commissioners of that county met August 5th and began the work of convassing the votes for the purpose of ascertaining who, of the candidates voted for in the primary election, had been nominated, but did not complete the count until August 6th, on which day it was ascertained by them that appellant Flannery had, by a majority of four votes, received the nomination. On the same day appellant was by them declared the nominee and awarded the certificate of nomination, but the certificate, owing to the absence of one of the election commissioners who was expected to return the same day and sign same, was not filed in the county clerk’s office until August 7th.
On August 12, 1913, the appellee, Shanks, served written notice on the appellant, Flannery, advising him that he would contest his right to the nomination.
On August 25, 1913, the contest was tried and determined by the Hon. Hugh Riddle, circuit judge of the dis
Before the trial of the contest was entered into by the circuit judge, the appellant, Flannery filed a special demurrer to the jurisdiction of the court; his contention that the court had no jurisdiction to try the contest being based upon two grounds: First, that the notice of contest had not been served upon him within five days after the certificate of nomination was awarded him; and second, that the notice of contest fixed no day, time or place, when and where he would be required to answer and defend such contest. The demurrer to the jurisdiction was overruled by the court.
The first ground rests upon the claim that the certificate awarding the appellant, Flannery, the nomination was delivered to him on the 6th day of August, although a copy thereof was not filed in the clerk’s office until August 7th, and that as the notice of contest was not served on him until August 12th, such service was had more than five days after the awarding of the certificate. The evidence being conflicting as to when the certificate of nomination was awarded, we do not pass upon that question of fact; and, as in view of a previous ruling of this court, we must sustain the second ground raised by the demurrer to the jurisdiction, it will be unnecessary to pass upon any other question raised upon the appeal.
The notice of contest given by the appellee, Shanks, and executed upon the appellant, Flannery, in addition to setting out the grounds upon which the contest would be made, contained the following statement: “And the contestee, L. T. Flannery, is hereby warned to answer and defend, if he so desires, not less than three nor more than ten days after service of this notice.” It will thus be seen that the notice in this case did not fix the day, time, or place for the contestee to answer or otherwise defend the contest, and this being true, the circuit court was, as insisted by appellant, without jurisdiction to try or determine same.
In Baxter v. Watts, decided September 30, 1913, the opinion in which will be reported in 154 Ky., this precise question was considered and passed on by us. The notice
With respect to the insufficiency of this notice, we, in that opinion, said:
“This is a new question, and we cannot look to the code of practice for any light upon it. .The primary election act passed at the last G-eneral Assembly must govern it. It is provided by section 28 of the act, ‘any candidate* wishing to contest the nomination of any. other candidate who was voted for at any primary election held under this act, shall give notice in writing * * * stating the grounds'of. such contest, within five days from the time the election commissioners shall have awarded the certificate of nomination to such candidate whose nomination is contested, * * * and shall warn the contestee of the time and place, when and where the contestee shall be required to answer and defend such contest, which shall not be less than three nor more than ten days after the service thereof.’ This section has no meaning unless the contestant is required to give the notice within five days after the election commissioners canvass the returns and give the election certificate. And in the notice he' should, at least, fix the day not earlier than three, nor more than ten days, thereafter for the contestee to appear and answer and defend.. This is clearly expressed in the section and cannot be construed in any other way to give meaning to the language used. ^ The notice in this case did not fix any particular day within the three days and ten days fixed in the statute for the contestee to appear and answer and defend. In our opinion, the statute is mandatory in this regard at least, and the court was right in dismissing the- contest and awarding the nomination to contestee. The case is, therefore, affirmed and the clerk of this court is directed to certify this-fact as required by statute.”
The opinion in the case supra, being conclusive of this case must control our decision of the question under consideration. It is manifest, therefore, that the circuit court erred in overruling appellant, Flannery’s, special demurrer to the jurisdiction, .and also erred in hearing
Wherefore, the judgment of the lower court is reversed and the appellant, Flannery, contestee in the court below, is hereby adjudged the nominee of the Eepublican party for the office of sheriff of the county of Lee. The clerk of this court is, therefore, ordered to certify this fact to the Secretary of State and to the county court clerk of Lee County, in order that the name of the appellant, Flannery, may be placed upon the ballot for the November election as such nominee.