115 S.W.2d 336 | Ky. Ct. App. | 1938
Affirming.
Appellant brought this action as a resident, voter, *766 and elector, of the courthouse precinct in the Sixth magisterial district of Clark county, and as a member of the Democratic Party. It is alleged that the appellee, Robert L. Epperson, wrongfully and without right had his name placed on the special ballot in the Republican column as candidate for the office of magistrate for the Sixth magisterial district in Clark county; that the notification and declaration filed by appellee was void, and he was therefore wrongfully declared to be the nominee of the Republican Party; and that all votes cast for him at the election were null and void. It is asserted that the Democratic nominee, one William Luman, received all of the votes legally cast and that appellee was given a certificate by the Board of Election Commissioners as the successful candidate, but is not entitled to the office. It is asserted that Luman refuses to contest the election for reasons unknown to the appellant. Appellant asked that the court declare the appellee's election to be invalid and that the office of magistrate in the Sixth magisterial district be declared vacant. Appellee filed a special demurrer to the petition, and, without waiving the special demurrer, filed a general demurrer. The court sustained the special demurrer, and the plaintiff declined to plead further, whereupon judgment was entered dismissing the petition, and this appeal followed.
The right of appellant to maintain this action has been determined adversely to him in at least two cases. Hettel v. Furste,
Appellant urges that the general demurrer filed by appellee operated to waive any question of defect of parties. The record does not bear out his contention. It affirmatively appears that the general demurrer was filed "without waiving" the special demurrer. Furthermore, it may well be questioned if the general demurrer itself would not have presented the point. Compare Bancamerica-Blair Corporation v. State Highway Commission,
Judgment affirmed.