Howard v. Bentley

196 S.W.2d 730, 302 Ky. 854, 1946 Ky. LEXIS 770

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 1, 1946
• Status: Published

Opinion

Opinion op the Court by

Van Sant, Commissioner

—Affirming.

At the 1945 general election, appellee, under the emblem of the Republican Party, received 359, and appellant, a “write in” candidate, received 164, votes for the office of Justice of the Peace of Magisterial District No. 1 in Leslie County. Within 30 days after the day of election, as prescribed by KRS 122.070, appellant instituted this action to contest the election. Thirty days after service of the summons having expired without appellant having completed or commenced taking evidence, and not having asked or been granted additional time within which to take evidence, the Chancellor, on motion of appellee, dismissed the petition.

KRS 122.080(2) provides: “The evidence in chief for the contestant shall be completed within thirty days after service of summons; the evidence for the contestee shall be completed within twenty-five days after filing of answer, and evidence for contestant in rebuttal shall be completed within seven days after the contestee has concluded; provided that for cause the court may grant a reasonable extension of time to either party.”

The provisions of this section are mandatory. Buten v. Clark, -217 Ky. 436, 289 S. W. 677. Since appellant failed to comply therewith, and since the material grounds for contest were controverted in the answer, the Chancellor properly dismissed the petition.

The judgment is affirmed.