Galloway v. Bradburn

82 S.W. 1013, 119 Ky. 49, 1904 Ky. LEXIS 144

• Court: Court of Appeals of Kentucky
• Decided: November 16, 1904
• Status: Published

Opinion

Opinion op the court by

JUDGE HOBSON

Reversing.

At the November election, 1903, appellant and appellee were candidates for circuit judge in the eighth circuit court district. By the official count, as made by the officers of the election, appellant received a majority of 270 votes in the distrct. Appellee filed a petition contesting the election, and on the hearing of that action in the circuit court it was adjudged that appellee had been elected by 342 votes. When the judgment was rendered in the circuit court in favor of appellee, appellant prayed an appeal, and immediately executed an appeal bond. Appellee has entered a motion to dismiss the appeal on the ground that the appeal bond is defective. Appellant, denying that the appeal bond is defective, which he executed before the clerk of the circuit court, tenders in this court a new bond, with same sureties, conforming to the statuie, and asks that it be filed as an amended bond. Whether the bond which appellant executed. before the clerk of the circuit court is defective, and whether, if it is defective, it may be amended or a new bond given now, are the first questions to be determined on the appeal.

The bond executed by appellant, after reciting the judgment entered in the circuit court to the effect that appellee was duly elected, and was entitled to the office on and after (he first Monday in January, 1904, concludes with these words: “Now we, John M. Galloway, W. G. Morris and M. M. Ennis, his sureties, do hereby covenant to and with appellee, B. TV. Bradburn, that the appellant will pay to appellee all costs and damages that may be adjudged against the appellant on (he appeal and also that they will satisfy and perform said judgment above stated in the event that it should be affirmed, and any judgment or order which the court of appeals may render or order to be rendered by the inferior court, not exceeding in amount or value the judgment aforesaid.”

The statute regulating contested elections, so far as material here, is as follows: “Within twenty days after the service of summons upon him the contestee shall file his answer, which may consist of a denial of the averments of the petition and may also set up grounds of contest against the contestant, and if grounds are so set up they .shall be especially pointed out, and none other shall thereafter be relied upon by said party. A reply may be filed within ten days after the answer or answers are filed, but its affirmative allegations shall be treated as controverted, and no subsequent pleading allowed, and the action shall proceed as an equity action. The evidence in chief for the contestant shall be completed within thirty days after the issues are made up, and the evidence of the contestee completed within twenty days thereafter, and the evidence for contestant in rebuttal in fifleen days after tlie contestee lias concluded. The action shall have precedence on the trial docket over all other cases. All ballots, poll books, stubs and other papers concerning which there is any ground for contest may be removed to the court in which the action is pending. Either party may appeal from the judgment of the circuit court to the court of appeals by giving bond to the clerk of the circuit court, with good surety, conditioned for the payment of all costs and damages the other party may sustain by reason of the appeal and by filing the record in the clerk’s office of the court of- appeals, within thirty days after final judgment in the circuit court, xind in the court of appeals the case shall be heard and determined as speedily as possible, and shall have precedence over all other cases. . . . On the production of a copy of the final judgment, the successful party shall be permitted to qualify or be commissioned, or a writ of new election shall be issued as the judgment may require. The unsuccessful party shall pay all costs in both courts.” Section 1596, subsection 12, Ky. St., 1903.

The final judgment referred to in the statute is the judgment which ends the controversy, and therefore, where an appeal is taken, the appellee would not be permitted to qualify or be commissioned until the appeal is determined. Under the terms of the statute, the supersedeas on the appeal stays the execution of the judgment. The statute therefore requires that the appellant shall give a bond conditioned for the payment of all costs and damages the other party may sustain by reason of the appeal. The damages which the appellee will sustain by reason of the appeal consist in his being kept out of his office during the pendency of the appeal. The bond which appellant. executed covenants that the appellant- will pay the damages that may be adjudged against him on the appeal.' But the damages for keeping appellee out of tlie office can not be adjudged, against appellant on the appeal. The bond also covenants that the appellant will satisfy and perform the judgment in the event it is affirmed, but a surety’s obligation is limited to the letter of his covenant, and this would make him responsible for nothing more than that appellant would surrender the office to appellee in the event the judgment is affirmed. The bond as executed by appellant is not, therefore, conditioned for the payment of the damages which appellee may sustain by reason of the appeal, and is insufficient, under the statute.

It remains to determine whether the bond may be amended or a new bond given.- The statute requires the appellant to give +he bond and file the record with the clerk of this court within thirty days after final judgment in the circuit court. In Patterson v. Davis, 70 S. W., 47, 24 Ky. Law Rep., 842, it was held that the execution of a bond within thirty days after the final judgment is a condition precedent to the right of appeal, and that, if the bond' is not given, the appeal must be dismissed; but in that case no bond was executed. It will be observed that the statute requires the bond io be executed and the transcript to be filed in this court within thirty days after the judgment in the circuit court. If a transcript filed in time for some reason is defective, as by the statute the case proceeds as an equity action, this court, under section 134, and section 742 of the Civil Code of Practice, might allow the defect to be remedied by the correction of the transcript, although more than thirty days had elapsed. In other words, the jurisdiction of the court would attach by the giving of the bond and the filing of the transcript in this court, and the court, having jurisdiction, under the sections of the Code referred' to, could allow the record brought before it to be perfected'. But it is insisted that the same rule can not be applied to a defective bond.

Previous to the year 1828 the rule was that if an appeal bond was defective the appeal must be dismissed. Clinton v. Phillips’ Adm’r, 7 T. JB. Mon., 117; Hardin v. Owings, 1 Bibb, 214. To remedy this the Legislature enacted the following statute:

“An act further to regulate appeals and appeal bonds: approved February 12, 1828.

“Section 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, that from and after the passage of this act, no appeal bond, or bond executed upon granting an injunction or supersedeas, either in the county, or circuit courts, general court, or court of appeals of this Commonwealth, shall be quashed or set aside for any technicality or other defect upon the face of the bond; but the court shall decide upon such defects and decide whether the same be a good' statutory bond or not, and if not, then such court shall dismiss the appeal, or writ of error or other proceeding upon which a supersedeas may have been had, or dissolve the injunction, unless the party appellant, plaintiff or complainant, as the case may be, shall forthwith, upon the defect being announced by the court, and as soon as a bond shall have been prepared, together with good and sufficient security, to be approved of by such court, conditioned as the law in such cases directs, execute mother bond to be prepared by the clerk of such court, and the execution of such new bond shall not be a cause of continuance for either party, and the bond so declared defective, may, notwithstanding, be sued upon as a bond at common law.”

1 Morehead & B. Ky. St., p. 137.

After this act was passed it was held that where a bond was defective the appeal would not be dismissed, but the appellant would be permitted- to execute a good bond in lieu of the original which was defective. Bates v. Courtney’s’ AchnT, 1 Dana, 145. Thus matters stood until the Civil Code of Practice was adopted. That contained this provision: “If a bond provided for by this Code be adjudged to be defective, a new and sufficient one may be executed in such reasonable time as the court may fix, with the same effect as if originally executed.” Section 682. Under this provision it has been uniformly held since the adoption of the Code that an appeal will not be dismissed on account of a defective appeal bond if a good bond is executed. Adams v. Settles, 2 Duv., 76; Alderson v. Trent, 79 Ky., 259, 2 R., 248. But it is urged that the bond in this case is not provided for by the Code, but is a bond required to be given under the act further regulating elections. On the other hand, it is insisted that as by section 838 the Code regulates pleading and practice in all civil cases commenced after its adoption, and as by the statute this case must proceed as an equity action, therefore any bond required in this proceeding is a bond provided for by the Code, within the meaning of the statute. While there is some force in this position, the language of (he statute is not to be extended by construction beyond its fair and natural meaning. There are a number of bonds provided for by the Code, such as appeal bonds in ordinary cases, bonds to obtain an order or arrest, bonds to obtain or discharge an attachment, bail bonds on an order of arrest, claim and delivery bonds refunding lionds, forthcoming bonds, bonds of indemnity, bonds to infants on sale of real property, bonds in suits on lost writings, bonds to perform a judgment, and the like.. When the Code in terms provides for so many bonds, the natural meaning of the words “a bond provided for by this Code” must be that they refer to the bonds which the Code authorizes. To hold otherwise is to deny to the carefully chosen language of the codifiers its natural and ordinary meaning. In. addition to this, section (183 provides that an officer whose duty it is to take a surefv “in any bond provided for by this Code” may require a person offered as surety to make affidavit of his qualification. Section 084 provides the qualifications of the surety “in every bond provided for by this Code.” It is perfectly manifest that sections G82, 6S3. and 684, in using precisely the same expression, “bond provided for by this Code,” referred to the same thing. Subsection 7, section 732, provides how the signature to a writing under the Code shall be made. It has been held that this provision only applies to writings that are required under the Code. Meazels v. Martin, 93 Ky., 50, 13 R., 958, 18 S. W., 1028. It would seem that the same construction should be given sections 682-684. In other words, the Legislature provided how the bonds required under the Code must be signed, and also provided who should be sufficient sureties, how this should be evidenced, and how the bonds may be amended. But in all of these provisions it had nothing more in mind than the bonds required by the Code. The same Legislature which adopted the Code of Practice in 1851 had before it ilie Revised Statutes, which also provided for a number of bonds; and if the Legislature had had in mind, in framing the Code, a general provision covering all bonds given in judicial proceedings it is incredible that, it would have used the language found in sections 682-684, and that this language should have been readopted without change in 1S77. 11 has never been supposed that the provisions of the Code as to the sufficiency of sureties in bonds provided by the Code was applicable to bonds given under the Revised or General Statutes. Thus, in the numerous cases which have been brought against county judges for taking insufficient surety in a guardian’s bond, it has uniformly been held that his liability depends simply on whether he exercised ordinary rare under the facts before him. It can not, therefore, now be held that section 682 applies to the bond in question.

As to' all bonds provided by the Code, section 682, is in effect the same as the act of 1828, but as to bonds not provided by the Code a different question is presented. In Madison, I. & P. R. Co. v. Briscoe, 18 B. Mon., 570, this court had under consideration the question whether the act of 1798 (1 Morehead & B. Ky. St., p. 131) giving damages upon. the dismissal of an appeal was repealed by the Codé of Practice. It was urged that the Code of Practice regulated appeals, and expressly provided for damages upon affirmances, but failed to provide for damages upon dismissals, and therefore by implication repealed the act of 1798. The court, however, held otherwise, and held the act of 1798 in force. Under that opinion, it is clear that the act of 1S28, in so far as it applies to bonds not provided for by the Code of Practice, was not repealed by the Code of 1851. The Code of 1877, which is now in force, contains verbatim the same provision as the Code of 1851 on the subject of bonds. The rule is that the re-enactment of an old statute is construed as simply the continuance of the old rule. The Code of Practice' provision contemplating only the bonds provided for by the Code, other bonds are not within the purview of its provision, and, not being regulated thereby, are left to be governed by that law that was in force when the Code of Practice was adopted. The act of 1828 is therefore still in force as to bonds not provided for by the Code of Practice.

In addition to this, and asidé from the act of 1828, section 134 of the Civil Code of Practice provides: “The court may, at any time, in furtherance of justice, andl on such terms as may be proper, cause or permit a pleading or pro-feeding to be amended, by adding or striking out the name Of a party,. or a mistake in any other respect; or by inserting other allegations material to the case; or, if the amendment do not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” This is a general provision. It includes not only pleadings, but every proceeding. Under it, as has been held, a bastardy warrant may be-amended (Commonwealth v. Cantrell, 45 S. W., 72, 20 Ky. Law Rep., 24), or notice of a contested election under the former statute (Wilson v. Hines, 99 Ky., 221, 18 R., 233, 35 S. W., 627, 37 S. W., 148), or the issue on appeal front a justice’s court to thei circuit court (Willis v. McNeal’s Adm’r, 8 Ky. Law Rep., 411). As the Code regulates proceedings in all actions, so this action allows an amendment of all proceedings in the process of an action. It was intended by it to provide in general for the amendment of anything that was found to be defective in the progress of an action, the purpose being to perfect rather than to destroy. It is not limited to mistakes in pleadings, but is intended to cover any kind of a mistake, and to allow an amendment. At common law, and before the passage of the modern statutes,' very many mistakes or clerical errors were cause for the dismissal of an action or the defeating of justice. The act of 1828 is only one of several acts passed by the Kentucky Legislature .allowing amendments so that injustice should not'be done. These acts were in force when the Code was adopted, and it was the clear■ purpose of the Code to continue the same principles in force, and to allow amendments even more liberally than before. Under section 134, a bond required in the course of a judicial proceeding not provided for by the Code, aside from the act of- 1828, may be amended just as any oiher proceeding in the case may be amended. Section 682 points out specifically liow the hoods provided by the Code may be amended, but section 134, which applies to everything else, allows- amendments in furtherance of justice, and on such terms as the court may deem proper. In other words, having provided by section 682 how Code bonds may be amended if defective, the Legislature, by section 134, made a general provision applicable to everything else that nothing might be omitted. The -words “a mistake in any other respect” are very comprehensive, and, there being nothing in the statute to limit them, they must include mistakes in a bond as well as mistakes in any other part of the proceeding. A number of bonds are- provided for in the Kentucky Statutes, such as bastardy bonds, bonds of persons bringing in a pauper, apprenticeship bonds, replevin bonds, bonds of vagrants, contractors’ bonds, and the like. None of these bonds are. provided for by the Code, and, if they may not be amended under section 134, then we have the anomaly that, while everything else in a- judicial proceeding may be amended in case a mistake is made, there is no remedy for a mistake in a bond not provided for by the Code. This we are not willing to held, in view of the broad language of the statute, when there is no reason why these bonds should be put on a different plane from everything else. To construe section 134 as allowing amendments of bonds not provided by the Code does not make section 682 meaningless. Section 682 applies to bonds provided for by (lie Code, and is a specific provision as to the mode of amending them. Bonds not provided for by the Code, not being within the purview of section 682, are provided, for by section 134, which is a general provision for amending every mistake in a proceeding as to which there is not elsewhere a specific provision. The act of 1828 is not repealed by section 134 o'f the Code, because that section is designed' to éffect 1 he same thing, so far as appeal bonds go, as the act of 1828; the only difference-being that section 134 is broader in its terms that the act of 1828. Still, as to appeal bonds, both have the same purpose: Implied repeals are not favored, and it can not be presumed that, in -providing that any mistake might be corrected the Legislature had in mind repealing á specific provision for the giving of á good appeal bond in the place of one that was defective.

We therefore conclude that the amended bond tendered in this court should be accepted, and the motion to dismiss the appeal is overruled.

The circuit court, threw out Huntsville precinct, in Butler county, and Bee Spring precinct, in Edmonson county; but, after these two precincts were thrown out, appellant was still left with a majority, so we need not consider whether the Huntsville precinct and the Bee Spring precinct were properly thrown out. The court recounted the vote in precincts 25 and 22 of Warren county. The result in these two precincts on the official count and the recount was as follows:

Re-No. 25. Count. count.

Bradburn .......... 138 197

Galloway ....................i. .. 195 145

No. 22.

Bradburn ...... 119 241

Galloway ...... 152 13

It will thus be seen that, while appellant received on the official count' a large majority in these two precincts, the appellee on the recount received the majority. In other words, 122 ballots which were counted for the appellant on the official count in' precinct 22 were counted for appellee on the recount, and 59 ballots in precinct 25 that were counted for appellant on the original count were counted for appellee on the recount. When the ballots were opened in court, appellant offered evidence tending to show that the ballots had been tampered with since they left the hands1 of the election officers. The circuit court declined to receive the evidence on the ground that the time for taking evidence had passed. In this he erred. The ballots were evidence in the case themselves, and, when the question was made that the evidence itself had been mutilated, the court had power summarily to determine the question. For example, if it had appeared that a deposition had been mutiliated after it was taken, the court might have heard evidence to show what the deposition really was. The same is true as to the ballots or any other exhibit when offered. The evidence may be heard by the court summarily in open court, in order for the court to determine what the writing which the law makes evidence in fact is. Otherwise the court might be required to base its judgment upon a forgery. The ballots in a case of this character stand like any other pare of the record, and, if any part of the record has been tampered, with, this fact may be summarily determined, so that the court may know what the record before him really is. But while the court rejected the evidence offered by the appellant on this subject, the ballots themselves, and the. envelope in which they were put, have been brought up to us, and, from an examination of them, we haye no doubt that the ballots have been mutilated since they were returned by the election officers. The ballots referred to were all stamped under the Republican device, and when opened in court they were also stamped in the small square opposite appellee’s name and opposite, Speed Guffy’s name, which were under the Democratic device, in the other column on the ballot. Every ballot that was thus marked for appellee was also marked for- Gutty, and these marks ax*e in plainly a different ink, and made with a different stencil from, the mark under the Republican device which the voter put there. The envelope containing the ballots in one of the precincts also discloses the fraud, because it has on it two colors of sealing wax, the lighter shade being on top of the darker shade; and the folding of the envelope when it was stamped the last timé covered part of the name of one of the officers of the election, written across the envelope when it was first sealed. In the other precinct the ballots were re-put in the envelope at all. These two precincts were reliable Republican precincts. The majority which appellant got in the two precincts by the official count was about the same, they gave all the other officers running on the Republican ticket at the same election, and about the same that they have given in recent elections for a number of .years. When the candidates for governor, attorney general, mayor, and judge of this court all received about the vote which was given appellant on the official count, it is incredible that only 13 voters in precinct 22 voted for him; and the decrepancy in the other precinct, while not so large, is also incredible. The testimony of the election officers is that the ballots in these two precincts were counted without any dispute or question. There were inspectors present for both parties. The ballots were taken out of the boxes and placed in three piles — the straight Republican ballots in one pile, the straight Democratic ballots in another pile, and the crossed ballots in a third pile. If there had been in either of these precincts such a number of crossed ballots ,as now appears, it would have astonished every man present at the count. Such a great discrepancy in the count could not exist by 'mistake. It could have only come to pass by fraud on the part of the election officers and the inspectors. The testimony of the officers is that the count went off smoothly, and there is nothing in the record to cast suspicion on the integrity of the officials. When we look at the ballots, it is not difficult, from the difference of the ink and the marking, to tell what ballots were voted or counted for appellee by them and what ballots were voted or counted for appellant.

The rule is that the certificate of the officers of election is prima fade correct, and that the presumption of the proper discharge of official duty in counting the ballots is not overthrown where the ballots have been tampered with after they were deposited in the ballot bos. As the ballots in the case before us have been tampered with, the certificate of the election officers is the best evidence as to how the vote was cast; and. as on this basis appellant was elected, it is unnecessary for us to determine any of the other matters discussed by counsel. Bailey v. Hurst, 68 S. W., 867, 24 Ky. Law Rep., 504; Hamilton v. Young, 81 S. W., 682, 26 Ky. Law Rep., 447.

Judgment reversed, and cause remanded for judgment as herein indicated.