Allen v. Griffith

Opinion of the Court by Chief Justice Hobson, on motion to set aside order directing mandate to issue forthwith. Sub-section 12 of section 1596a, Kentucky Statutes, regulating appeals to this court in contested election cases provides: [622] “And in the Court of Appeals the case shall he heard and determined as speedily as possible and shall have precedence over all other cases.” The petition in a case like this must be filed in ten days after the final action of the board of canvassers. The answer must be filed in twenty days, the reply in ten days; thirty days are allowed the plaintiff to take evidence in chief; twenty days are allowed the defendant and fifteen days are allowed for evidence in rebuttal. The action has precedence on the trial docket over all other cases, and the appeal to this court is taken by executing bond and filing the transcript in this court within thirty days after final judgment in the circuit court. In this court the case must be determined as speedily as possible. When the appeal must be taken in thirty days and must be determined as speedily as possible, it can not be conceived that it was intended that thirty juridical days should elapse after the decision of this court before the mandate issues. The act shows a clear purpose to speed these cases through. The provision that the appeal shall be heard and determined as speedily as possible necessarily means that it must be finally determined as speedily as possible, and if this is done the mandate which is the evidence of the final determination of the case must issue at once. The statute must mean that the code provision as to the mandate issuing after thirty days is not to apply to appeals in election contests. We so held in primary election cases (Price v. Russell, 154 Ky., 828) and the same rule must obtain in appeals in regular election cases. The mandate should not issue immediately as a matter of right, but will be issued upon the order of the court. This being true, the motion to set aside the order directing the mandate to issue is overruled. The issuing of the mandate will not prevent the filing of a petition for rehearing. “If any mistake is made or injustice is done, the court will entertain seasonable application for a modification of the judgment and will make such further orders as the ends of justice require.” (Price v. Russell, 154 Ky., 828.) Motion overruled.