Summary
In McDonald we held that a bill of exceptions filed under the Corrupt Practices Act did not confer jurisdiction on the court.
Summary of this case from Longo v. City of WavelandOpinion
No. 32632.
April 26, 1937. Suggestion of Error Overruled May 17, 1937.
1. APPEAL AND ERROR.
Proper bill of exceptions on appeal is necessary to confer jurisdiction on Supreme Court.
2. ELECTIONS.
Purported bill of exceptions on appeal from decision of judge and election commissioners in election contest setting up some of contentions but failing to set up points of law with rulings thereon with synopsis of pertinent evidence and rulings sought to be reversed, nor containing statement signed by trial judge that bill was a correct statement of proceedings, but stating that bill did not set up facts established by cross-examination of witnesses by contestees or examination by trial judge, and was never presented to and signed by two attorneys as provided by statute on failure or refusal of trial judge to sign, held insufficient to confer jurisdiction on Supreme Court (Laws 1935, Ex. Sess., c. 19, section 15, pars. [c, d]).
3. ELECTIONS.
Contents of bill of exceptions contemplated by Corrupt Practice Act on appeal in election contest must include petition, answers, and exhibits thereto, points raised before special tribunal, setting forth rulings thereon, and pertinent facts necessary to an understanding thereof, in absence of which, jurisdiction is not conferred on Supreme Court, and does not authorize sending up of stenographer's notes except in case of disagreement as to facts between judge and one or more of election commissioners (Laws 1935, Ex. Sess., chapter 19, section 15, pars. [c, d]).
Election contest by John T. McDonald and others against J.H. Spence and others. Petition for review was filed and the Chancellor of Tenth Court District was appointed by the Chief Justice of the Supreme Court to hear the contest. From a decision of the Chancellor and election commissioners for the contestees, contestants appeal. Appeal dismissed.
Gardner Backstrom, of Gulfport, for appellee, J.H. Spence, on motion to strike.
The record shows that the court's finding of fact was concurred in by all of the election commissioners of the City of Pass Christian, Mississippi, and for that reason, under the express provisions of the Mississippi Corrupt Practices Act, the testimony cannot be embodied in the bill of exceptions; and the bill of exceptions in this case purports to set out the substance of all of the testimony in the case.
The order of the court allowing the bill of exceptions shows that the trial court found and adjudicated that the bill of exceptions did not set out the facts elicited from the contestants and their witnesses on cross-examination, nor the substance thereof, or any fact elicited from the contestants or their witnesses in response to questions propounded to them by the court, nor the substance thereof.
The bill of exceptions, while purporting to set forth the substance of all of the testimony, is shown by said order allowing the same, to set forth the substance of only a portion of such testimony. Error in the court's finding of fact on the testimony cannot, therefore, be predicated thereon, for the reason that it is manifestly impossible to safely predicate error on a court's finding of fact when the substance of only a part of the testimony considered by the court is shown.
J.L. Taylor, White Morse, of Gulfport, and Geo. R. Smith, of Pass Christian, for other appellees. J.F. Galloway and Joe Drake Arrington, both of Gulfport, and U.B. Parker, of Wiggins, for appellants, on motion to strike.
Boiled down to substance, the motion of appellee, to strike the bill of exceptions from the record in this cause as to him, while based upon three supposed reasons, all three of the reasons given are to be rightfully considered under the first ground of the motion; that is to say: for the reason that the court's finding of fact was concurred in by all of the election commissioners of the City of Pass Christian, Mississippi; and for that reason, under the expressed provision of the Mississippi Corrupt Practices Act, the testimony cannot be embodied in the bill of exceptions; and that the bill of exceptions in this case purports to set out the substance of all of the testimony in the case.
Appellant, therefore, says with confidence that to state the circumstances surrounding the facts in this case as supported by the record is enough to warrant this court in denying the motion to strike the bill of exceptions.
Argued orally by U.B. Parker, for appellant, and by J.L. Taylor and Oscar Backstrom, for appellee.
The appellants were candidates, in a primary election, for municipal offices in the city of Pass Christian, after which they undertook to file a contest thereto under the "Corrupt Practice Act," being section 15 of chapter 19, Laws of Mississippi Extraordinary Session of 1935. The petition for review provided by this act was filed with the circuit clerk, and was presented to the Chief Justice of this court, who appointed Hon. Ben Stevens, Chancellor of the Tenth Chancery Court District, as the judge to hear the contest. The date for the hearing was set and the parties appeared and presented their contentions to the chancellor and election commissioners who decided in favor of the contestees. The appellants then undertook to prepare a bill of exceptions and to prosecute an appeal to this court, in which was set forth what they contended was a history of the trial before the special tribunal, at the conclusion of which is the following:
"The foregoing special bill of exceptions is this day presented and allowed by the undersigned Chancellor within the time allowed for so doing. Done this the 12th day of December, A.D. 1936.
"______ Chancellor."
It will be noted that the chancellor did not sign this bill of exceptions; it was not corrected so as to show what the statute requires it to show, nor was it presented to and signed by two attorneys as may be done, if the chancellor refuses to sign it, under said act. The chancellor indorsed on this alleged bill of exceptions the following:
"The foregoing Special Bill of Exceptions, which does not set up facts established by cross-examination of witnesses by contestees, and also facts elicited by examination of said witnesses by the court, is this day presented and allowed by the undersigned chancellor who presided at the trial within the time allowed for so doing. Done this the 12th day of December, 1936.
"Ben Stevens, Chancellor."
This, of course, is not a proper bill of exceptions, and does not constitute one within the purview of the statute. Under paragraph (c) of section 15 of chapter 19, Mississippi Extraordinary Session of 1935, it is provided as follows: "When the day for the hearing has been set the circuit clerk shall issue subpoenas for witnesses as in other litigated cases, and he shall also issue a summons to each of the three election commissioners of the county, unless they waive summons, requiring them to attend said hearing, throughout which hearing the said commissioners shall sit with the judge or chancellor as advisors or assistants in the trial and determination of the facts, and as assistants in counts, calculations and inspections, and in seeing to it that ballots, papers, documents, books and the like are diligently secured against misplacement, alteration, concealment or loss both in the sessions and during recesses or adjournments; the judge or chancellor being however, the controlling judge both of the facts and the law, and to have all the power, in every respect, of a chancellor in term time; and the tribunal shall be attended by the sheriff, and clerk, each with sufficient deputies, and by a court reporter. The special tribunal so constituted shall fully hear the contest or complaint de novo and make a finding dictated to the reporter covering all controverted material issues of fact, together with any dissents of any commissioner, and thereupon the trial judge shall enter the judgment which the county executive committee should have entered, of which the election commissioners shall take judicial notice . . . and in the absence of an appeal, it shall be the duty of the state executive committee forthwith to reassemble and revise any decision theretofore made by it so as to conform to the judicial judgment aforesaid." By paragraph (d) of this section of the act, it is provided that, "Within three days after judgment rendered, unless a longer time not exceeding four additional days be granted by the trial judge, the contestant or contestee, or both, may file an appeal in the supreme court upon giving a cost bond in the sum of three hundred dollars, together with a bill of exceptions which shall state with appropriate fullness the point or points of law at issue with a sufficient synopsis of the facts to fully disclose the bearing and relevancy of the said points of law, the said bill of exceptions to be signed by the trial judge, or in case of his absence or refusal, or disability, by two disinterested attorneys, as is provided by law in other cases of bills of exception. If the findings of fact have been concurred in by all the commissioners in attendance, provided as many as two of the commissioners are and have been in attendance, the facts shall not be subject to review on appeal, and the bill of exceptions shall not set up the evidence upon which the facts have been determined. But if not so many as two of the commissioners are and have been in attendance or if one or more of the commissioners dissent, a transcript of the testimony may be filed with the bill of exceptions, or within such short time thereafter as the supreme court may allow, and the supreme court upon a review thereof may make such finding upon the facts as the evidence requires, giving only such consideration as the court may think warranted to the presumption of correctness of the conclusions of the trial judge."
A proper bill of exceptions is necessary to confer jurisdiction on this court, and there is nothing before us that can be construed as a bill of exceptions to confer upon this court the right to decide the matters attempted to be presented. The purported bill of exceptions certainly does not comply with the law upon that subject. While setting up some of the contentions made before the court below, it does not set up, in the manner required by the act, the points of law and the rulings of the court thereon seriatum, with a synopsis of the evidence pertinent to each point, or the ruling sought to be reversed. There is no certificate by the trial judge that this bill of exceptions is a correct statement of the proceedings before him, but, on the contrary, it shows that it is not a correct statement of the proceedings, and it was never presented to and signed by two attorneys, as may have been done where the judge refuses or fails to sign same.
The act contemplates that the bill of exceptions shall contain the petition, answers, and exhibits thereto, and the points raised before the special tribunal, setting forth the rulings thereon, and the facts developed which may be pertinent to an understanding thereof. This act does not authorize the sending up of the stenographer's notes unless there is a disagreement as to the facts between the judge and one or more of the election commissioners.
The bill of exceptions not being in conformity with the law, there is nothing before us to consider, and we can only look to the stenographer's notes when there is a disagreement as to the facts.
It follows from what we have said that we cannot now decide the many interesting questions presented, including the constitutional questions, presented in the argument. Therefore, we must dismiss the appeal.
Appeal dismissed.