130 Ky. 563 | Ky. Ct. App. | 1908
Opinion of the Court by
Dismissing appeal.
Appellant and appellee were voted for for the office of school trustee in Jefferson county. Appellant was awarded the certificate by the board of canvassers. In due time appellee instituted a contest in the circuit court, resulting in a decree in his favor, adjudging that he had been elected to the
By the act of October 24, 1900 (Laws 1900, Ext. Sess. c. 5, p. 27), now appearing in Carroll’s Kentucky Statutes (1903) as section 1596A, the circuit couits are given original jurisdiction of certain election contests, including the class of which the case at bar is one. By the same act it is provided (subseo. 12): “Either party may appeal from the judgment of the circuit court to the Court of Appeals by giving bond to the clerk of the circuit court, with good surety, conditioned for the payment of all costs and damages the other party may sustain by reason of the appeal, and by filing the record in the clerk’s office of the Court of Appeals within thirty days after final judgment in the circuit court. And in the Court of Appeals the case shall be heard and determined as speedily as possible, and shall have precedence over all other eases. * * * The unsuccessful party shall pay all costs in both courts.” Prior to that act the practice in such cases was regulated by statutes entirely different from the present law, and before nonjudicial tribunals. The present act, while requiring the practice in such cases to conform to the practice in equity actions in the particulars where same can be made applicable, creates a unique course of procedure in many particulars; but there is a com
It is suggested that, as the statute makes the unsuccessful litigant in the contest liable for the costs, appellant’s estate is concerned in the judgment in this case, as that judgment includes the recovery of the costs against him, and, unless the judgment is reversed, the estate would be compelled to pay the costs. The ease of Snibley v. Palmtag, 127 Cal. 31, 59 Pac. 200, is cited and relied on by appellant. That case was an election contest. The respondent died
But in this State there is no appeal from a mere judgment for costs, no matter how much they may amount to. 'Appellate jurisdiction here is made to depend upon other matters, always excluding the
Inasmuch as the Legislature has not provided for the emergency of death of a party to the contest pending the hearing or appeal, and as independent of legislative enactment such right does not survive at the common law, we must hold that the appeal abates upon the death of either party to it. The hardship of possible injustice in such' a result cannot justify the courts making law to relieve it. If a contestant, although wrongfully deprived of the office to which he had been elected, and wrongfully denied the certificate, had died before filing his petition of contest, the certificate would have been the complete title of the holder, and no provision exists for its impeachment. That might have worked1 a hardship on the public. So here, in the language of the statute (subsection 12, section 1596A), “on the production of a copy of a final judgment, the successful party shall be permitted to qualify or be commissioned,” is the legislative declaration of what the status shall be. Whether hardships ensue is for legislative consideration, not' ours.
The appeal is dismissed.