97 Tenn. 264 | Tenn. | 1896
This record presents a contest over the office of Justice of the Peace for the First Civil District of Hamilton County. The successful candidates, on the face of ^the returns, were H. J. Springfield and E. T. Hixon. The election occurred on Thursday, August 2, 1894, and, on the following Monday, Arngust 6, complainant, Puckett, gave notice to the Sheriff of his intention to contest said election, and requested him to withhold the returns until the contest should he decided. This notice, it appears, was served upon the Sheriff about noon of Monday, August 6, succeeding the election, but, at an earlier hour of said day, probably between eight and nine o’clock, the Sheriff had mailed to the' Sec
The first assignment is that it was error to overrule contestant’s demurrer to contestee’s plea to the jurisdiction, for the reason that said plea does not present a full and sufficient answer to the declaration. It suffices to state, in respect of this assignment, that the demurrer was not overruled by the Circuit Court. As already stated, the demurrer was overruled by the County Court, and it was never presented to the Circuit Court or any ruling of that Court asked upon it. It must, therefore, be treited as waived or abandoned.
The second assignment is that the Cofirt erred in striking out contestant’s second replication to defendant Springfield’s plea. This assignment is not well taken for the reason already stated in respect of the demurrer. The second replication to the plea was stricken out by the County Court, and the matter was not afterward called to the attention of the Circuit Court or any ruling made upon it by that Court.
The next assignment of error arises upon the charge of the Court. The Court instructed the jui*y, viz.: £ £ If you are satisfied from a preponderance of proof that the Sheriff made returns to the Governor of the election from the First Civil District before he had received notice of- this contest, and thereafter a commission was regularly issued and was received by
“The Sheriff, Mr. Skillern, was required by law to compare the polls at the courthouse on Monday after the election occurring on Thursday, and deliver*270 his certificate thereafter and make returns of said election within three days after comparing the polls.”
We are of opinion that, in the instructions given and in refusing the request submitted by counsel for contestant, the Circuit Judge was in error. The error committed is made apparent in the light of the following provisions of positive statute governing this subject:
Section 1104 (M. & V.), Code, provides, viz.: “Any candidate for Justice of the Peace intending to contest the election, shall notify the Sheriff of his intention, and the Sheriff shall withhold the returns in that case from the Governor until the contest is decided. ’ ’
Section 1105 provides, viz.: “The contestant shall give ten days’ notice to the opposing candidates that it is his intention to contest the election.”
Section 1106: “The County Court shall hear and decide the contest. ’ ’
Section 1084 provides, viz.: “In all cases in which the persons elected by the vote of a single county or fraction of a county are commissioned by the Governor, the returning officer in such county shall make return of such election to the Secretary of State by mail, to be deposited in the post office within three days after comparing the polls.” Justices of the Peace are commissioned by the Governor and are elected by the vote of a fractional part of the county, hence this provision is directly applicable to such officers.
We are, therefore, of opinion that under these sections the polls could not legally have been compared until Monday succeeding the election, and that the contestant was entitled to the whole of that day to file notice of contest with the Sheriff, and this right could not be defeated by the action of the Sheriff in mailing and forwarding the returns early Monday morning. As opposed to this construction and as sustaining the charge of the Circuit Judge, counsel for contestee relies upon Sec. 12, Chap. 1, Acts 1835, which provides, viz.: “That the Sheriff of the respective counties aforesaid shall, immediately after the election, make out a certificate of said election, showing who are elected Justices of the Peace in the respective districts of the county, and shall forward same to the Governor, who shall issue a commission to the Justice or Justices of the Peace.”
It suffices to say that this section of the Act of 1835 was not bi’ought forward in the Code of 1858, and is, therefore, repealed. M. & V. Code, § 42; State v. Smith, 3 Heis., 467; Bledsoe v. Stokes, 1 Bax., 312, 314.
The fourth assignment is that it was error in the Circuit Judge to charge the jury that it was immaterial whether the polls were or were not compared
For the errors in the charge the judgment is reversed and the cause, remanded.