Morgan v. Wason

Hill, J.

1. Whenever any contest arises over an election of a mayor of a municipality, the same shall be filed, heard, and determined by the ordinary of the county wherein such contest may arise, under the same rules and regulations as to the mode of procedure in contests where commission is issued by the Governor. Civil Code (1910), § 125.

2. Under the Civil Code (1910), § 121, par. 1, five days shall elapse after the election shall have been hold before a commission can be issued.

3. Under the Civil Code (1910), § 121, par. 2, such contest shall be begun by giving the adverse party five days notice in writing, stating the grounds of contest, the time and place where the contestant intends to take testimony, and the judicial officer before whom the testimony will be taken.

4. Accordingly, where an election was held for mayor of the Town of East Lake on Saturday, October 10, .1925; and where the managers of the election declared the contestee elected, and the contestant defeated, and on October 12, 1925, the contestee was sworn in as mayor, and on October 13, 1925, the contestant filed a petition to the ordinary of the county in which the election was held, to hear a contest of said election, after giving notice as provided by law; and where on the hearing before the ordinary on October 20, 1925, the contestee filed a demurrer to the petition, which demurrer was sustained and the ordinary dismissed the contest proceedings; and where the contestant filed a petition against the ordinary for a writ of mandamus to compel the ordinary to hear- and determine such election contest, alleging that the ordinary had failed and refused to perform his legal duty in the premises; and where the petition for mandamus, the answer, and the demurrer of the contestee were submitted to the trial judge, and there being no issue of fact involved, and both parties agreeing that the same might be heard by the trial judge in vacation, under the above provisions of the code the court did not err, under the facts of this case, in granting an order making the mandamus absolute, and requiring the ordinary to hear and determine such contest. Judgment affirmed.

No. 5213. June 19, 1926. All the Justices concur. Robert G. W. Ramspeck and L. J. Steele, for plaintiff in error. Mark Bolding, Georgs M. Wilson, H. A. Beaman, and Dorsey, Howell & Heyman, contra.