Gardner v. Jones

Gilbert, J.

On tlie call of the case for argument in this court, the defendant in error submitted a motion to dismiss the writ of error on the ground that the issue was moot, and in connection with the motion submitted affidavits tending to show that when the injunction was re: fused the previously granted restraining order was set aside, that no supersedeas was granted, and that thereafter the .trial of the election contest before the ordinary proceeded to a conclusion and the judgment of the ordinary had been rendered, and that, this being the sole object of the application for injunction, the question is now moot. The plaintiffs in error filed an answer to the motion, in which the facts contained in the motion were not denied, but they insisted that the ordinary had no jurisdiction to try said contest; that a certificate from the ordinary as such, or from the court of ordinary, proves nothing as to the result of any contest tried before O.' O. Shirley, the individual, he being the umpire to hear and determine such contest simply because he happened to be the man designated by law, and that therefore this court was without “authentic information” on the question of whether the ordinary had heard and decided the election contest. Held: That answer of the plaintiff in error is not a direct denial that the ordinary has heard and concluded tlie election contest, and therefore raises no issue of fact. The plaintiffs in error having, in their answer, failed to raise an issue of fact, the facts stated in the motion to dismiss will be accepted as true. The case is therefore dismissed on the ground that the sole question to be determined is moot.

No. 4960. November 14, 1925. George F. Gober and G. B. Walker, for plaintiffs. J. P. Brooke, for defendants.

Writ of error dismissed.

All the Justices eoneur.