50 Ind. App. 35 | Ind. Ct. App. | 1912
— Appellant, James L. Watkins, bas wholly ignored the rules of this court in the preparation of his brief. Appellee, Mark E. Forkner, calls attention to this fact, but supplies in his brief much that should have appeared in appellant’s brief.
On December 17, 1909, appellant filed in the Henry Circuit Court his verified petition, in which he alleged, in substance, that on December 13, 1909, appellant and appellee were candidates for the office of mayor of the city of New Castle; that appellant desires to contest said election, and honestly believes there was a mistake made and fraud committed in the official count of the ballots cast for said office; that he desires a recount of all said ballots, including all contested or thrown out ballots.
Prayer for the appointment of three commissioners, and all proper relief. No other pleading was filed by appellant.
Proof that due notice of the filing of said petition was served on appellee was made on December 21, 1909, and thereupon appellee, by his attorneys, entered a special appearance, and moved to dismiss said petition, for the following reasons: (1) That there is no law in force authorizing the proceedings; (2) the court has no jurisdiction on the
The motion to dismiss was sustained, the petition dismissed, and judgment was rendered accordingly.
The assignment relied on is that the court erred in sustaining the motion to dismiss the petition for a recount of the ballots.
The proceeding is not an election contest, but appellant contends that he is entitled to a recount under §§6990, 6991 Burns 1908,-§§4738, 4739 R, S. 1881.
Appellee claims these sections have been repealed by later acts, and are no longer in force. But assuming, without deciding, that they are in force, the lower court was justified in dismissing appellant’s petition.
It thus appears that appellee has long since ceased to hold the office of mayor; that appellant acquiesced in and recognized the election of appellee to said office; that his resignation caused a vacancy in the office to which appellant sought election.
The controversy has therefore resolved itself into a moot question, which alone would compel a dismissal of the appeal under the well-established rules of this Court and our Supreme Court.
As this Court has not acquired jurisdiction, and the controversy has resolved itself into a moot question, the appeal is dismissed.
Note. — Reported in 97 N. E. 1020. See, also, under (1) 1913 Cyc. Ann. 1784; (2) 2 Cyc. 537; (3) 3 Cyc. 188. For a discussion of the resignation of the conteste© as a defense to a proceeding to contest an election, see Ann. Cas. 1912D 265.