Jones v. Brown

64 S.W.2d 165, 251 Ky. 12, 1933 Ky. LEXIS 794

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 25, 1933
• Status: Published

Opinion

Opinion of the Court by

Creal, Commissioner

Affirming.

In the regular primary election held in Whitley county in August, 1933, Wolford Jones and Walter-Brown were rival candidates for the Republican nomination for circuit court clerk, they being the only candidates offering for such nomination. Upon a canvass and tabulation of the vote Walter Brown was found to have received 4,272 votes, and Wolford Jones to have received 4,063, showing a majority of 209 in favor of the former, whereupon the election commissioners awarded a certificate of nomination to the successful candidate. •

Within the time prescribed by law, Jones instituted this contest proceeding, and after formal allegations, with respect to his qualifications and his compliance with the provisions of the statutes relating to primary election alleged in his petition in substance that contestee had violated the provisions of the Corrupt Practice Act (section 1565b-1 et seq., Ky. St.) in that he personally and by and through others with his knowledge and consent had promised, given, and expended large sums of money and other things of value to bribe and influence voters to vote for him.

By answer contestee traversed the alleged grounds; of contest and as countergrounds of contest against contestant affirmatively alleged like violation of the Corrupt Practice Act upon the párt of the latter, which affirmative allegations were in turn traversed by reply.

On final hearing, after several hundred pages of proof were taken by depositions, the court dismissed contestant’s petition and contestee’s countercontest and adjudged that contestee was entitled to the certificate of nomination and to have his name printed upon the ballot at the regular election as thereby authorized. It was further adjudged that, as both parties had unduly extended the depositions by unnecessary cross-examination, contestant should pay two-thirds of the costs of the action, and that appellee should pay one-third of such costs. Contestant is appealing.

Included in the record is an opinion by the special judge who was designated to try the case, wherein evidence to sustain the grounds of contest is reviewed and summed up. It is then pointed out that this evidence is so overcome by impeachment, contradiction, and proven facts to the contrary as to leave no substantial basis for a conclusion that there was a violation of the Corrupt Practice Act.

•A careful reading and consideration of the evidence clearly discloses that the. judgment is amply sustained by the evidence, and in such circumstances this court would not be authorized to disturb the lower court’s finding.

Judgment affirmed.

Whole court sitting.