128 A. 87 | Pa. | 1925
Argued January 19, 1925. Petition to contest election of sheriff. Before McPHERSON, P. J.
The opinion of the Supreme Court states the facts.
Petition dismissed. G. D. Morrison, one of the petitioners, appealed.
Error assigned was, inter alia, dismissal of petition, but not quoting order. Section 18 of the Act of May 19, 1874, P. L. 213, relating to election contests, provides that an affidavit verifying the petition shall be made by five of the petitioners, "setting forth that they verily believe the facts stated therein are true, that according to the best of their knowledge and belief the election was undue or illegal, and the return thereof not correct, and that the petition to contest the same is made in good faith."
The present affidavit omitted to state that the return of the election was incorrect, or, in the words of the act, "the return thereof not correct," although such was the complaint involved; the court below held the omission a fatal defect and quashed the petition. This appeal followed.
Judge MITCHELL, afterward Chief Justice of this court, held in Contested Election of Division Inspectors, 11 Phila. 380, that the affidavit in cases under the Act of 1874 must substantially follow the language of the *429
statute and failure to do so constitutes a jurisdictional defect. Judge MITCHELL's ruling accords with the trend of subsequent decisions of this court in cases where positive procedural directions are not adhered to (see North Union Township Election,
In Acker v. Conrad, 13 Pa. C. C. R. 97, cited by appellants, the court below, relying on the election cases reported in
The order appealed from is affirmed.