55 So. 2d 460 | Miss. | 1951
Lead Opinion
This is a contested election case, and the appellee has filed a motion to dismiss the appeal on the grounds, (1) that the appeal bond was filed with the Clerk of this Court, when it should have been filed with the clerk of the circuit court, and (2) that the bill of exceptions was not filed within the seven day period allowed by the trial judge for the filing of same under Section 3185, Code of 1942. The appellant in his argument against the motion to dismiss the appeal says that the motion should be overruled for the reasons, first, that the appeal bond was properly filed with the Clerk of this Court, and, second,
The trial before the special court, which consisted of Honorable J. F. Guynes, Chancellor, and the three county election commissioners, was begun on October 15, 1951, and was completed on October 20, 1951, and a judgment was entered on the last mentioned date in favor of the contestant. On October 23, 1951, the trial judge signed an order granting to the contestee four days additional time within which to perfect his appeal to this Court; and on the same day the trial judge signed an order directing that a transcript of the record be made a part of the bill of exceptions and that the bill of exceptions be prepared and filed not later than October 27, 1951. The appellant filed his appeal bond in the sum of $300 with the Clerk of this Court on October 23, 1951. The bill of exceptions was presented to the trial judge and signed by him on Saturday, October 27,1951; and the bill of exceptions and the transcript of the testimony were filed with the Clerk of this Court on Monday, October 29, 1951. The four days additional time allowed by the trial judge in his order dated October 23, 1951, for the preparation and filing of the bill of exceptions, expired on Saturday, October 27, 1951.
According to the certificate signed by the trial judge on October 29, 1951, the appellant’s delay in filing his bill of exceptions with the Clerk of this Court was due to the fact that the trial judge on October 27, 1951, was engaged in the trial of another election contest case in Marion County, and appellant’s attorney had to drive to Columbia on that day for the purpose of obtaining the judge’s signature to the bill of exceptions. The trial judge signed the bill of exceptions and approved the transcript of the testimony about 4:30 o’clock p. m., and appellant’s attorney was unable to return to Jackson in
We think that the filing of the appeal bond with the Clerk of this Court within the time allowed by Section 3185, Code of 1942, constituted a sufficient filing of the bond, and that this Court thereby acquired jurisdiction to review the case on appeal. In the case of Evans v. Hood, 195 Miss. 743, 15 So. (2d) 37, this Court held that when the statutory appeal bond has been given and approved within the time allowed therefor, the case is ipso facto removed to the Supreme Court, although the record is yet to be transcribed and forwarded. The bond might have been filed in the office of the clerk of the circuit court. And if the bond had been filed in the office of the clerk of the circuit court, this Court would not have dismissed the appeal on that account. Evans v. Hood, supra. The statute is silent as to where the bond shall be filed. But, when the bond is properly executed and filed with the Clerk of this Court or with the clei’k of the circuit court, it is a valid and binding obligation, and there is no merit in appellee’s contention that the appeal should be dismissed because the bond was filed in the office of the Clerk of this Court, when it should have been filed in the office of the clerk of the circuit court.
The second point argued by the appellee in support of his motion to dismiss the appeal is that the bill of exceptions was not filed in this Court within the time allowed by the trial judge for the filing of the same under Section 3185, Code of 1942. But we think that there is no merit in this contention. Section 1959, Code of 1942, provides that “An appeal to the Supreme Court shall not be dismissed for want of jurisdiction because of a defect in the application for appeal, or in the bond, or because of any failure by an officer to comply with the requirements of law in reference to appeals; but all defects and irregularities may be cured by amendment, so as to perfect the appeal and obtain the judgment of the Supreme Court in the case; but the court may dismiss an
The motion to dismiss the appeal is overruled, and the appeal will be considered by the Court upon its merits.
Motion to dismiss appeal overruled.
Opinion on the Merits
On the Merits.
Garfield May and Estus Layton were candidates in the Second Democratic Primary on August 28, 1951, for the office of Supervisor of District 1 of Simpson County, Mississippi. The votes as tabulated by the Simpson
The effect of the finding of facts and the judgment of the Special Tribunal was to hold that Layton was elected by a vote of 692 to 686; to hold void all ballots cast in the E'ast North Magee and Weathersby precincts, and to hold void all except eight absentee ballots in the Old Hickory precinct, and to hold void all ballots in the Sumrall precinct except one absentee vote. This action was based upon the failure of election managers to initial the regular ballots, of regular voters to sign receipt books therefor, and upon defects in the method of delivery of absentee ballots. Chinn v. Cousins, 1946, 201 Miss. 1, 27 So. (2d) 882; Hayes v. Abney, 1939; 186 Miss. 208, 188 So. 533; Code Sec. 3164; Walker v. Smith, Miss., 56 So. (2d) 84.
The primary effect of the judgment of the Special Tribunal was to exclude practically all of the votes in four of the nine precincts of the district, and to hold void 836 votes out of a total vote in the district of 2,213. There was no finding of . fraud in the handling of the election; the errors appear to have resulted solely from a misapprehension as to and failure to comply with the
Upon the record before this court, whether we consider only the bill of exceptions or the testimony also (and we pretermit any question as to whether a transcript of the testimony can by agreement of the parties be made a part of the record under Code, Sec. 3185), it is manifest that these above-stated failures to comply with the mandatory provisions of the statutes require that practically all of the votes in all four of the boxes in question must be held void.
As was said in Briggs v. Gautier, 1943, 195 Miss. 472, 485, 15 So. (2d) 209, where there is a total departure from the mandatory provisions of the statute, and it is not possible to ascertain the will of the electors, because a substantial portion of the votes were void, a new election should be ordered for the purpose of ascertaining the voter’s choice. See also Chinn v. Cousins, 1946, 201 Miss. 1, 27 So. (2d) 882; Code, Sec. 3167. The judgment of the Special Tribunal is, therefore, reversed and since it is now too late for a primary election limited to the four boxes in question, it is ordered that an election be called and held for all of the boxes in the entire District No. 1 in the manner provided by Code of 1942, Sec. 3187.
Reversed and election ordered.
The above opinion is adopted as the opinion of the Court and for the reasons therein indicated, the judgment of the Special Tribunal is reversed and election ordered.
