Pearson v. Alverson

49 So. 756 | Ala. | 1909

SIMPSON, J.

The petition in this case was filed by the appellant against the appellee for the purpose of contesting the election of said contestee to the office of county treasurer. On motion made by the contestee the petition was dismissed, and from the decree of the judge of probate dismissing said petition, this appeal is taken.

Election contests are special statutory proceedings, and, according to the best authorities, which have been followed by our own. court, are to he strictly construed as to those provisions for inagurating the contest, and which are necessary to jurisdiction. A short time limit is fixed, because it is important that such matters should be determined as speedily as possible for the public good. It is accordingly held that, if the petition is defective as to any of- the statutory requirements, it cannot he amended after the expiration of the time limited for commencing the contest. To construe the law otherwise ■would render the time limit' of the statute ineffective. The giving of security according to the statute is also a jurisdictional requirement. — Black v. Pate, 130 Ala. 514, 30 South. 434; Wilson v. Duncan, 114 Ala. 659, 21 South. 1017; Gillespie v. Dion, 18 Mont. 183, 44 Pac. 954, 33 L. R. A. 703. The first subdivision of section. 460, Code 1907, requires that the petition or “statement in writing” shall state that the party who files it “was a qualified voter, when the election was held.” The petition or statement in this case does not contain this allegation, and the motion to amend it in that particular was not made until long after the time limit had expired. “The statutes authorizing amendments to pleadings, in ordinary suits, cannot be applied to enlarge the time so expressly limited.” — Black v. Pate, supra, 130 Ala. 526, 527, 30 South. 439. Section 462, Pol. Code 1907, provides that “at the time of commencing such contest and of the filing of the statement in writing the party contesting must give security for the costs of such contest, to be filed and approved as in this article provided;” and section 471 requires said security to be approved by the judge of the probate court. The requirement that it shall be “filed” shows that said security must be in writing. In this case no such security was filed; but, in lieu thereof, the contestant deposited $100 with the judge of the probate court, which was not a compliance with the statutory requirement. This is a jurisdictional requirement, and cannot be supplied after the expiration of the time limit. There is no time limit fixed by statute within which a motion to dismiss the contest shall be filed by the contestee. Hence there is no force in the objection by the contestant that the motion was made first only on the ground of the failure to give the security required by statute, and afterwards amended so as to include the other cause. At any rate, from what has been said, it will be seen that the first motion was sufficient to warrant the dismissal of the contest.

The decree of the judge of the probate court is affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ., concur.