Schloth v. Smith , 134 Ga. App. 529 ( 1975 )

134 Ga. App. 529 (1975) 215 S.E.2d 292

SCHLOTH
v.
SMITH.

50328.

Court of Appeals of Georgia.

Argued February 25, 1975. Decided April 9, 1975.

William J. Schloth, pro se.

John W. Denney, Michael P. Cielinski, for appellee.

EVANS, Judge.

On November 5, 1974, William J. Schloth was the Republican nominee for Judge of the Superior Court of the Chattahoochee Judicial Circuit. Schloth lost the election to the incumbent, and on November 18, 1974, he filed a contest to this election. Code Ann. § 34-1705 requires a contest of an election to be filed in the proper court within five days after the official consolidation of the returns of that particular office and certification thereof by the election official having responsibility for taking such action.

Code Ann. § 34-203 (d) requires that the State Election Board be served with a copy of the proceeding.

The contest of November 18, 1974, was not served on the State Election Board. However, on November 26, 1974, an amendment to this petition was filed with certificate attached showing service on the Chairman of the State Election Board by registered mail on November 25, 1974.

But the returns of the election were canvassed and consolidated for Taylor County on November 6, 1974; Chattahoochee County on November 6, 1974; Muscogee County on November 6, 1974; Talbot County on November 8, 1974; Harris County on November 6, 1974; and Marion County on November 6, 1974.

1. The election contest was not filed within five days after the official consolidation of the returns of that particular office and certification thereof by the election official having responsibility for taking such action. See Code Ann. § 34-1705. Compare Robinson v. Bassett, 128 Ga. App. 711 (197 SE2d 799).

2. The amendment which was served on the election board was not filed until November 25, 1974, some 17 to 19 days late, at which time the election result was final. Having failed to comply with the statute within five days, and failing to serve same on the election board, there was never any jurisdiction for the contest. See Smith v. Nathan, 127 Ga. App. 610 (194 SE2d 490); Robinson v. Bassett, 128 Ga. App. 711 (197 SE2d 799); Moody v. Carter, 128 Ga. App. 27 (195 SE2d 204); Price v. Cheek, 130 Ga. App. 506, 507 (203 SE2d 751).

3. The court did not err in dismissing this contest. The election law is in derogation of the common law and must be strictly construed. Watson v. Thompson, 185 Ga. 402, 407 (195 S.E. 190); Foster v. Vickery, 202 Ga. 55, 60 (42 SE2d 117); Laite v. Stewart, 112 Ga. App. 853 (2, 3, 4) (146 SE2d 553).

Judgment affirmed. Deen, P. J., and Stolz, J., concur.