Hollis v. State ex rel. Vaughan

237 S.W.2d 952, 192 Tenn. 118, 28 Beeler 118, 1951 Tenn. LEXIS 388
CourtTennessee Supreme Court
DecidedMarch 9, 1951
StatusPublished
Cited by11 cases

This text of 237 S.W.2d 952 (Hollis v. State ex rel. Vaughan) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hollis v. State ex rel. Vaughan, 237 S.W.2d 952, 192 Tenn. 118, 28 Beeler 118, 1951 Tenn. LEXIS 388 (Tenn. 1951).

Opinion

Me. Justice Tomlinson

delivered the opinion of the Court.

This is a proceeding instituted by Charles W. Vaughan as an election contest with reference to the office of County Judge of Lawrence County. The contestee is Bay Hollis to whom the Lawrence County Election Com[120]*120mission issued a certificate of election following the regular biennial election field on August 3, I9601. Yaugfian also made parties to the proceedings the three Lawrence County Election Commissioners, naming them. Hollis and these Commissioners will hereafter be referred to collectively as contestee.

Thirty days after the proceedings were commenced Vaughan moved for leave to amend in the particulars hereinafter stated his “ sworn statement of the grounds of the contest” (such statement hereinafter being called a bill). The amendments were allowed over the objection of contestee by the Chancellor. Contestee filed a motion to strike Vaughan’s bill as amended. This was overruled, as was their subsequently filed demurrer. An appeal was prayed and allowed from all of the foregoing action of the Chancellor. The case is here on that appeal for decision of the questions thereby made.

Vaughan’s bill charges that the Election Commissioners of Lawrence County decided to use the power vested in them by reason of this office for the purpose of “ taking over the management of the civil affairs of Lawrence County” and for the accomplishment of this purpose to elect county officials who would be subservient to their will, and declared that if necessary they would “steal the election” in order to elect such persons. The fifty-one page bill of Vaughan specifies quite a number of alleged fraudulent and illegal acts upon the part of the commissioners with reference to the election, all of them said to have been designed and carried out for the purpose of so “stealing the election”; that as a result of such conduct “the election was so permeated with fraud, irregularity and illegality that it was not an expression of the will of the electors”, and that “such fraud, irregularities, illegalities and violations of the [121]*121law Rave rendered it impossible to ascertain the will of the voters and electors in such election, and have rendered the result of the election incurably uncertain, to such an extent that such election is an absolute nullity and void”.

It is alleged that Vaughan was the incumbent County Judge and was a candidate for re-election, and that the candidate opposing him who was supported in the manner aforesaid by these commissioners is the contestee, Bay Hollis. It is alleged that Hollis “was fully aware and cognizant of all of such fraudulent, irregular and illegal acts and violations of law set forth above, acquiescing therein, approving the same and participating therein ’ ’.

Vaughan states in his bill that he does not seek to have a decree declaring Vaughan to have been elected, but that the end sought is an adjudication declaring the entire election “null and void”, it being stated that this relief is sought “for the general welfare”. .

Code, Section 2123 requires that a contest instituted by a candidate in a judicial election shall be commenced within twenty days after the election. Vaughan’s bill was presented to the Chancellor within that time. It was then styled “Charles W. Vaughan v. Bay Hollis” and the commissioners. Thirty days after the bill was filed Vaughan moved for leave to amend so as to affirmatively declare on the face of the bill that it was being prosecuted by Vaughan in the name of the State on the relation of Vaughan. The contestee excepted to the action of the Chancellor in allowing this amendment over their objection. This is one of the assignments of error here. The insistence is that this amendment stated a new cause of action which is barred by the aforesaid twenty day statute of limitations provided by Code, Section 2123. Harmon v. Tyler, 112 Tenn. 8, 83 S. W. 1041, [122]*122and State ex rel. Davis v. Kivett, 180 Tenn. 598, 177 S. W. (2d) 551, are relied upon by contestee in support of this insistence.

In Harmon v. Tyler and State ex rel. v. Kivett, supra, the proposed amendment presented a new ground of contest, and it was sought more than twenty days after the election. Since Code, 'Section 2123 requires that the contestant shall“ present a sworn statement of the grounds of contest” within twenty days after the election, it would have been a violation of the clear mandate of that statute to have permitted an amendment more than twenty days after the election stating a new ground of contest. It follows that Harmon v. Tyler and State ex rel. v. Kivett are not in point unless the amendment allowed by the Chancellor in the case at bar did state a new ground of contest.

Vaughan’s amendment only purported to let the bill affirmatively recite that the grounds of contest already stated in that bill are being presented by Vaughan as relator in the name of the State. There was no change whatever in the grounds of contest relied upon, nor in the relief asked, it being stated in the bill as originally presented that this relief was asked “for the general welfare”. At most, then, the amendment in question had only the effect of perfecting a statement in a cause of action previously stated in the bill. Controlling here is the holding in Delaney v. Delaney, 190 Tenn. 632, 231 S. W. (2d) 328, 332, “ ‘that an amendment changing capacity in which a plaintiff sues does not change the cause of action so as to let in the defense of limitation’ ”.

Contestee further insists that the Chancellor had no authority to allow the amendment. This insistence is predicated upon the fact that the remedy given a candidate for judge by Code, Section 2123 to contest the [123]*123election “does not confer jurisdiction upon the chancery court, as a court, but constitutes the chancellor a special tribunal to determine and hear the contest”. Barham v. Denison, 159 Tenn. 226, 238, 17 S. W. (2d) 692, 696. The point sought to he made by contestee is that the Chancellor’s only authority as such special tribunal is that expressly given by the enabling statute, Code, Sections 2123-2129. It is said this statute does not give the Chancellor authority to permit any kind of an amendment to the bill after the expiration of the twenty day limitation.

The pertinent language of Code, Section 2123 is that “Should a candidate for the office of judge . . . desire to contest his election, he shall, within twenty days after such election, present a sworn statement of the grounds of contest to the chancellor”. The right of a candidate, as such, in a judicial election to contest in his individual name such an election could hardly be stated in clearer language. So it was that in Maloney v. Collier, 112 Tenn. 78, 83 S. W. 667, and in Barham v. Denison, 159 Tenn. 226, 17 S. W. (2d) 692, the unsuccessful candidate for judge, proceeding under this Code section was permitted to contest that election in his individual name. In Maloney v. Collier the only relief sought was identical with the only relief sought in the case at bar, that relief being to have the election annulled. 112 Tenn. at page 101, 83 S. W. at page 667. Likewise in Barham v. Denison this relief was sought in the alternative. It was entertained by the Court without question of the right of the unsuccessful candidate to make the question.

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Bluebook (online)
237 S.W.2d 952, 192 Tenn. 118, 28 Beeler 118, 1951 Tenn. LEXIS 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollis-v-state-ex-rel-vaughan-tenn-1951.