Lapas attēli
PDF
ePub

Taking and filing testi

mony.

Proceedings upon filing of petition.

Hearing of contest; petition in error.

Bond and costs.

Limitation for

in error.

service has been made upon the contestee. Any notary public may take such testimony in any county of the state without reference to the county in which he resides. If taken in shorthand, the signature of the witnesses shall not be necessary to depositions so taken, if such depositions have been read over to the witness and approved and such fact is certified by the notary. (89 v. 363 § 2.)

SECTION 5141. The contestor shall take and file all his testimony by deposition within twenty days from the time that his reply to the answer should be filed, unless, upon notice to the contestee, further time is given by the court of appeals, or a judge thereof. The contestee shall take and file all his testimony by deposition within twenty days from the expiration of the contestor's time, unless, upon notice to the contestor, further time is granted by the court or a judge thereof. Witnesses may be compelled to attend and be examined orally in open court, as in civil cases. (103 v. 423.)

SECTION 5142. As soon as the contestor has filed his petition, the clerk shall notify the presiding judge thereof. If necessary, the judges shall provide for a special term in such county to hear and determine such contest in a summary manner, and, if practicable, before the term of the office in question shall begin, and cause the clerk to notify the parties of any order of the court. (89 v. 363 § 3.)

SECTION 5143. The court shall hear and determine the contest without the intervention of a jury. In the conduct of the case, exceptions may be taken by either party as in civil actions, and the supreme court shall in a summary manner hear and determine all errors alleged by either party, to be presented by petition in error as in civil actions. The court of appeals and supreme court may render such judgments and make such orders as the law and the facts warrant, including judgment of ouster and induction, and the judgment of the supreme court shall be decisive of the contest. (103 v. 423.)

SECTION 5144. If the contesting elector is not a claimant for the office, he shall at the time of filing his appeal also file a bond, with sureties to be approved by the clerk, conditional that he will pay all costs that may be finally adjudged against him therein. Upon the final hearing, the court shall adjudge the costs of the case as to it seems just and equitable, and in such adjudication it shall find what part, if any thereof should be paid from the state treasury. (89 v. 364 § 5.)

SECTION 5145. After the expiration of twenty days filing petitions from the rendition and entry on the journal of the final judgment of the court of appeals neither party shall have the right to file a petition in error in the supreme court for review of the court of appeals. (103 v. 424.)

MEMBERS OF THE GENERAL ASSEMBLY.

election of

sembly.

SECTION 5146. The right of a person declared duly Contest of elected to the office of senator or representative in the gen- members of eral assembly may be contested by any elector of the dis- general as trict or county by appeal to that branch of the general ssembly to which such person is declared elected. Such elector shall serve like notice in the manner and within the time prescribed in case of contests of the election of county officers. (R. S. Sec. 3003.)

SECTION 5147. The provisions herein contained relat- Mode of ing to the taking of testimony in cases of contest of elec- procedure. tions of county officers, shall apply to such contest, except that all testimony taken and all matters relating to the contest shall be sent to that branch of the general assembly to which the contestee was declared elected and be filed with the clerk thereof on or before the tenth day of the first session of the general assembly after the election. (R. S. Sec. 3004.)

COUNTY OFFICERS.

county offi

SECTION 5148. The right of a person declared duly Contest of elected to any county office or to the office of probate judge election of may be contested by any elector of the county by appeal to the court of common pleas of the county. 2997.)

(R. S. Sec.

NOTE: In an election contest on an appeal in the court of common pleas questions of law arising upon evidence brought on the record by a bill of exceptions, are subject to review on error without a motion for a new trial having been made and overruled.

Phelps v. Schroder, 26 O. S. 549.

In an action to contest an election where the election officers are functus officio, the fact that none of the ballots in dispute were counted by the election officers may be established by parol evidence. Williams v. Barker, 17 N. P. 679, (B. Aug. 5, 1907).

In a contested election case, where the term of office has begun before the case is brought to trial, a finding in favor of the contestant should be accompanied by a judgment of ouster and of induction of the contestant into office.-Ibid.

cers.

appeal.

SECTION 5149. The contestor shall file a notice of Notice of such appeal with the clerk of such court and give noti thereof in writing to the contestee, or leave such notic at the house where he last resided, on or before the thi tieth day after the day of election. The notice shall stat: the grounds of contest and the names of two justices of the peace before whom depositions will be taken, and the place, and a time, not less than ten days nor more thar. twenty days from the day of service thereof, where and when such justices will attend and take the depositions (R. S. Sec. 2997.)

Who may

SECTION 5150. Such justices, or either of them, or officers, before whom depositions are taken in the case, shall take testiissue subpoenas for all persons whose testimony may be

mony.

Testimony

mitted to

court.

required by either party, and subpoenas duces tecum for the production of the books, papers, ballots or things relating to such election, and they may compel the attendance of witnesses and the production of everything named in the subpoenas. (R. S. Sec. 2998.)

SECTION 5151. The justices shall not receive testimust be trans- mony upon any point not named in the notice. When met, they shall hear the testimony and certify it under seal, including a copy of the notice, which shall be delivered to them by the contestor for that purpose, which testimony and copy shall be transmitted by them to the court of common pleas of the county not less than thirty days after the day fixed in the notice to begin the taking of testimony. The contest shall be heard and determined by the court, if then in session, and if not then in session, at the first term thereof thereafter. (R. S. Sec. 2000.)

What is competent; how errors cured.

When case heard; costs.

Contest of election as to county seat.

Notice and bond of contestor.

SECTION 5152. On the trial, either party may introduce oral testimony or depositions of witnesses taken as provided in civil actions. When any omission, defect or error occurs in the proceedings of an officer in declaring or certifying that a person was duly elected to an office, it may be corrected by oral or other testimony, offered at the hearing of any preliminary proceeding or at the trial. (R. S. Sec. 3001.)

SECTION 5153. Upon motion of either party, the court shall at once take up and determine any pending matter relating to the contest, otherwise the case shall be heard in its regular order upon the docket. The court shall render judgment against the party failing in the case for all the costs of the contest, including the costs of depositions. (R. S. Sec. 3002.)

COUNTY SEAT.

SECTION 5154. Any elector of a county in which a law for the removal of the county seat thereof has been submitted to the electors thereof for adoption, may contest the validity of the vote given at such election upon such question. (R. S. Sec. 3015.)

SECTION 5155. Within twenty days after the day of such election, the elector so contesting shall file in the office of the probate judge of the county notice of his intention. to contest the validity of the vote. Within the same time. he shall also file in such office a bond to the state, approved by the probate judge, or in his absence or disability or refusal to act, by the clerk of the court of common pleas of the county, conditioned for the payment of all costs that accrue upon the contest in the event the result of the vote upon such question, as certified and made known, is not invalidated by and upon the contest. Under the notice so filed, any other elector may file in such office within such time a like undertaking, to be in like manner approved. and proceed with such contest in accordance with these provisions, in the event the party filing the notice fails to

prosecute the contest at any time during the proceedings.

(R. S. Sec. 3016.)

poi tmert of

SECTION 5156. Upon the filing in the office of the Publication of notice or undertaking, the probate judge or clerk shall notice and ap publish in a newspaper of general circulation in the county commissioner. the fact of the filing of the notice and undertaking, and, without delay, shall forward to the governor duly certified copies of the notice and undertaking. On receipt of the copies, the governor shall, without delay, appoint a competent disinterested person to serve as commissioner and perform the duties herein prescribed in the matter of the contest. In case of the death or disability of the commissioner, the governor may fill the vacancy. (R. S. Sec. 3017.)

commissioner.

SECTION 5157. The commissioner shall be sworn faith- Duties of fully to discharge the duties required of him. Within ten days after being notified of his appointment he shall go to the office of the probate judge of the county and, having notified the contestors verbally or otherwise of his presence, he shall proceed at such office and at such other places in the county as he finds convenient to examine all witnesses produced or brought before him and take their testimony in writing as to the validity of the votes cast at such election upon such question and as to the validity of the result. thereof. He may take or cause to be taken in writing the depositions of persons as he deems material in the determination of the contest at any place out of the county in such manner and before such authority as he prescribes. For these purposes, he may administer oaths to witnesses, issue processes of subpoena and attachments to compel the attendance of witnesses and punish for contempts as may be done by officers authorized to take depositions in civil actions. (R. S. Sec. 3018.)

SECTION 5158. In executing his duties, the commis- Powers of sioner shall hold open sessions, he may preserve order commissioner. while in the execution of his commission and punish contempts in the same manner as courts of justice are by law authorized to do while in session. He may command the services of the sheriff and other ministerial officers of the county and employ the assistance of such clerks as are necessary to reduce to writing, evidence taken under his supervision. (R. S. Sec. 3018.)

SECTION 5159. The commissioner shall finish taking testimony within forty days after he reaches the office of the probate judge. The evidence taken before him or by his direction shall be properly certified, sealed and endorsed by him, indicating that the package contains evidence taken upon the contest and filed in the office of the clerk of the court of common pleas of the county. Upon being so filed, the clerk shall enter the case upon the appearance and trial dockets of the court in its proper order with other cases. The court or a judge thereof for the sub

When testimony shall in court.

close; filing

Hearing in court of common pleas; judgment.

Continuance;

costs.

Contest of election of justice of the peace.

division in which the county is situated, at the next regular term thereof or at an earlier time, shall cause the package to be opened, preserved and kept in such office for the use and inspection of the parties to the contest and their counsel. (R. S. Sec. 3019)

SECTION 5160. At the next term of the court or at an earlier day, if so ordered by the judge, the matter of the contest shall be brought to final hearing upon the law applicable to the case, and the evidence taken and filed as herein provided. No part of the evidence shall be rejected by reason of any mere technical objection to its form or the manner of taking or certifying it. If, upon the hearing, the court or judge finds that illegal votes were cast at the election upon such question by reason whereof or for any other reason found by the court or judge, the result of the election or vote so returned and certified is contrary to what it would have been but for such illegal votes or other reason, the court or judge shall enter and certify such finding on the records of the court. Upon the hearing, if the court or judge finds that the result of the election or vote would not, by reason of illegal votes or other cause have been contrary to the return thereof, as certified, the court or judge shall certify and enter such finding on the record of the court. If, upon the finding, it appears that a majority of the electors voting at such election voted in favor of adopting the law, it shall be taken and held to be adopted. (R. S. Sec. 3020.)

SECTION 5161. For sufficient cause, the court or judge may continue the hearing of the contest from time to time until it can be finally disposed of. If the result of the election is not changed by the final order or certificate of the court, the costs and expenses of the contest, which shall be taxed by the clerk, subject to the order of the court, shall be adjudged against the contestors. If the result of the election is changed by the final order or certificate, the costs or expenses shall be paid from the treasury of the county from any money not otherwise appropriated. The commissioner shall be allowed for his services, to be taxed as costs, five dollars for each day of time he has been employed, and each clerk shall be allowed two dollars for each day employed in writing testimony. (R. S. Sec. 3021.)

JUSTICES OF THE PEACE.

SECTION 5162. Within ten days after the day of the election, any candidate or elector of the township may contest the election of a justice of the peace. Such candidate or elector must notify the probate judge of the county of such intention, specifying the points on which the contest shall be based. The probate judge shall give notice thereof to the person whose election is contested, stating the name of the contestor, the points on which he relies, and citing him or them to appear at his office on a day not more

« iepriekšējāTurpināt »