Fish v. Collens

IIoweix, J. This is a contested election case, in which tho plaintiff has appealed from a judgment dismissing his action on exceptions pleaded by the defendant, who has, in this court, moved to dismiss the appeal on the grounds: “Mrst. — Because this is a case in which the right to an office is involved and tho appeal herein taken from the judgment of the District Court was not made returnable to this court, nor was the transcript filed within the delay required by law. “Second. — Because there is no allegation nor evidence sufficient to give this court jurisdiction rations materke over this cause, and to show that the amount in dispute exceeds live hundred dollars.” 1. On the first ground, it is contended that the appeal should, by the act of 1864, § 9, p. 20, have been made returnable, and the transcript filed within ten days after the judgment of the lower court. The judgment was signed on the ninth of November, 1868, the motion for appeal made on the sixteenth of tho samo month, the appeal made returnable on the second Monday (fourtentli day) of December following, the transcript completed on the eighth and filed on the fifteenth of the same month. Under these circumstances we cannot say that the irregularity is imputable to tho appellant and he is consequently protected by the twelfth section of said act. He complied with the order of the* judge a quo, whose duty.it w'as to name tho return day in accordance with the law, and there is nothing to show that the appellant sought or obtained any advantage by delay. 10 A. 493, 7"8. See also acts 1866, p. 154,- §§ 13, 16. 3. As the contest is for the office of District Judge, the salary of which is fixed by law, we cannot see the absolute necessity of alleging or proving the amoxlnt involved. We know as well from tho statute, as we would, from an allegation or proof in the record, that the matter in dispute pecuniarily exceeds five hundred dollars. The election contested was, by the constitution, for judges who are to hold office for a term of four years. Arts. 84 and 154. The act No. 99 (acts of 1868) fixes the salary of the District Judges at $5000 per annum. It is therefore ordered that the motion to dismiss be overruled with costs.