144 S.W.2d 22 | Ark. | 1940
Appellant and appellee were opposing candidates for the office of county and probate judge of Chicot county in the recent democratic primary election, held August 27, 1940. The county central committee met and canvassed the returns of the election on August 30, which showed that 2,644 votes were polled for the two candidates, of which appellee received 1,323 and appellant 1,321 votes, or a majority of 2 votes for appellee. A certificate of nomination was accordingly issued to appellee.
Thereafter, on September 9, 1940, at 6:45 p.m., appellant filed with the clerk of the circuit court his *297 complaint to contest the certificate of nomination issued to appellee on several grounds, which are unnecessary to enumerate here, and caused a summons to be issued for appellee, which was left with the clerk, together with a sufficient sum to cover the fee of the sheriff for service, and directed the clerk to deliver same to the sheriff on the following day, the sheriff's office being just across the hall of the courthouse from that of the clerk and being closed at that time. The clerk delivered said summons and fee to the sheriff on the next morning, September 10, at about 9 a.m. and service was promptly had. Said complaint, so filed, was verified by appellant and there was attached thereto the supporting affidavits purporting to have been made by fourteen qualified electors and citizens of Chicot county, before a duly qualified and acting notary public.
Thereafter, on September 16, 1940, appellee filed his motion to dismiss the action because the court was without jurisdiction to try same for two reasons: First, that the action was not commenced within 10 days as required by 4738 of Pope's Digest; and, second, that the complaint was not supported by the affidavits of ten reputable citizens in that certain of the purported affiants signed same without the sanctity of an oath, without reading or having same read to them and without swearing that the allegations thereof were true.
The court sustained the motion to dismiss on both grounds, dismissed the complaint and this appeal is from that order. We think the learned trial court erred in so holding.
1. The statute above cited provides that the complaint shall be filed within ten days of the certification complained of. It was filed and a summons issued on September 9, which was the tenth and last day in which it could be filed. This is a short statute of limitations. In Peay v. Pulaski County,
In the Simms case,
Here, however, there is nothing to negative an intention on the part of counsel for appellant that the summons should be served in a timely manner, and it was so served. All the facts and circumstances show that the writ would have been delivered to the sheriff at once, had his office not been closed, and we think a delivery the next day was all the law requires. In fact the statute says an action is commenced when a complaint is filed and a summons is issued, and that was done within ten days. So the action was not barred.
2. Was the supporting affidavit sufficient? The trial court held, under the authority of Thompson v. Self,
The judgment will, therefore, be reversed, and the cause remanded with directions to overrule the motion to dismiss, and for further proceedings. *301