Bowen v. Holcombe , 204 Ala. 549 ( 1919 )

Appellant sought to contest the election (not nomination) of the appellee to the office of sheriff of Mobile county, in virtue of amended Code, § 470 (Act approved April 5, 1911, Gen. Acts, p. 195). The contestee's demurrer to the appellant's original "statement of grounds of contest" being sustained, the "statement" was amended, and appellee's demurrers thereto were sustained. Contestant declining to plead further, judgment was rendered for contestee, with costs.

Contests of elections are proceedings of purely statutory creation; and the Legislature may prescribe the jurisdiction, methods and means therefor. Scheuing v. State ex rel., 177 Ala. 162,164, 59 So. 160, among others.

The exaction of security for costs of contest, set down in Code, § 470, and in its amended form, supra, is a jurisdictional requirement that, if wholly absent, will not allow the court to proceed a "single step." Hutto v. Walker County, 185 Ala. 505, 510, 64 So. 313, Ann. Cas. 1916B, 372; Wilson v. Duncan, 114 Ala. 659, 669, 21 So. 1017; Ex parte Shepherd, 172 Ala. 205, 210, 211, 215, 55 So. 627; Pearson v. Alverson, 160 Ala. 265, 49 So. 756, among others.

An imperfect security for costs may be perfected by amendment. Lowery v. Petree, 175 Ala. 559, 57 So. 818. This transcript to which the clerk of the circuit court attaches the customary certificate of completeness does not show that any security whatever for costs of contest was offered or given in compliance (defective or otherwise) with the law's jurisdictional exaction in that regard. This essential to jurisdiction in a special proceeding of this character cannot be assumed or presumed.

As the record stands on reproduction for the purposes of appeal, the court below did not acquire jurisdiction in the premises. Hence, according to the record here, the court was without jurisdiction; and any judgment rendered or order taken will not support an appeal. Singo v. Fritz, 165 Ala. 658, 661,51 So. 867; Singo v. McGhee, 160 Ala. 245, 252, 49 So. 290.

Appeal dismissed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.