Lay v. Rose

<p>1. Elections — Record of State Board of Election Commissioners Showing That Returns Were Canvassed. — A record of the state board of election commissioners reciting that “It appearing from the certificates returned that R. S. Rose received the highest number of votes for the Republican nomination for circuit judge,” shows that the returns were canvassed and the result of the election ascertained and determined by the board, although no certificate of election was then issued.</p> <p>2. Elections — State Board of Election Commissioners — Powers and Duties of. — When it has been ascertained and determined by the board that a candidate has received a majority of the votes cast at an election, the board has no discretion to exercise as to whether they will issue the certificate of nomination or election to him; they must issue it. They have no power or authority to go behind the election returns or to question their verity or validity.</p> <p>3. Appeal and Error — Case Must be Tried on Record Made up in Lower Court — Papers Cannot be Filed Here for the First Time.— Affidavits attempting to impeach the verity of the records of a board of election commissioners filed for the first time in this court are not entitled to any consideration. This court must decide cases upon the record as it is made up in the lower court, and this record cannot be added to or supplemented by papers or documents tendered in this court for the first time.</p> <p>4. Elections — Contested Elections — Special Demurrer to Jurisdiction of Court. — The contestee may by a special demurrer, and without entering his appearance, question the jurisdiction of the court over his person, or over the subject matter of the action, or over both.</p> <p>5. Elections — Contested Elections — Time When Notice of .Contest Must be Executed. — A notice of contest must be given within five days from the time the board of election commissioners have ascertained from canvassing the votes who received a majority, although the certificate of nomination may not be issued on that day. The five days begin to run not from the time the certificate is issued, but from the time when the board has ascertained and determined by a canvass of the votes who has received a majority.</p> <p>6. .Elections — Contested Elections — Giving of Notice of Contest in Proper Time Jurisdictional Fact. — The giving of the notice of contest within the time prescribed by the statute is a jurisdictional prerequisite, and if the notice is not given within this time the circuit court has no jurisdiction to hear or determine the case.</p> <p>7. Elections — Contested Elections — Presumption as to When Vote was Canvassed by Board. — When a notice of contest does not show on its face when the board of election commissioners canvassed the election returns, the legal presumption is that.they performed this duty on the day designated by the statute.</p> <p>8. Elections — Contested Elections — When Question as to Jurisdiction of Court May Be Raised. — Whether the contestee may raise at any time the question of the jurisdiction of the court, or whether he will be deemed to have waived his right to so object by failing to make his objection in seasonable time, is a question not decided.</p> <p>9. Elections — Contested Elections — Demurrers, Motions, Pleadings, and Responses — When Must Be Piled — When a judge is present on the day the contestee is required to respond, he should file in court all motions, demurrers and pleadings, and the contestant should likewise file in court such pleadings, motions and demurrers as he desires to file. But if a judge is not present on the day the contestee must answer, he should file such demurrers, motions and pleadings in the clerk’s office of the circuit court, and within the time allowed by the statute, and the contestant should likewise file in the same office and within the time allowed such motions, demurrers and pleadings as he desires to file.</p> <p>10. Elections — Contested Elections — When and How Evidence Must be Taken. — If a judge is present when the issues are made up, the evidence should be taken in such manner as he may direct, as provided in subsection 28 of section 1550 of the statutes; but if the judge is not present when the issues are made up, the contestant should immediately begin to take his evidence by depositions and complete his proof'within the time allowed by the statute, and the contestee should take his evidence in the same manner within the time allowed, and when the evidence, on account of the absence of a judge, is so taken, the judge whq hears *the case should permit it to be read, subject to exceptions for lack of competency.</p> <p>11. Elections — Contested Elections — Piling Answer or Other Pleadings in Clerk’s Office Will Not Waive Demurrer ,or Other Preliminary Motions. — If, on account of the absence of a judge, the contestee must file his answer in the clerk’s office, he will not by so doing waive his right to rely upon demurrers or motions that he has filed before or simultaneously with his answer; and neither will the contestant in filing his reply be deemed to have waived any preliminary motions that he may have filed with his reply.</p> <p>12. Elections — Contested Elections — Place Where Notice of Contest Should Require Contestee to Answer. — The place where the contestee must answer is the clerk’s office of the circuit court of the county in which the proceeding is instituted, and this is the place where all subsequent motions, pleadings and demurrers hy both parties must be filed when the court is not in session.</p>