31 150 152 101

The Ohio and Mississippi Railroad Company v. Shultz.

by fire at New. Point, in Decatur county. The facts in the case and the questions presented are substantially the same as in the immediately preceding case of the same railroad company v. Paramore, and the judgment is reversed for the same reasons given in that case.

Judgment reversed, with costs, and the cause remanded for a new trial.

U. J. Hammond and L. Howland, for appellant.

B. W. Wilson, J. Gavin, J. D. Miller, and W. H. Carrol, for appellees.

THE OHIO AND MISSISSIPPI RAILROAD COMPANY v. SHULTZ.

JURISDICTION.- Collateral Proceeding.—It is well settled, that the proceedings of courts of inferior jurisdiction will be deemed of no validity unless their jurisdiction is affirmatively shown.

PRACTICE.-Supreme Court.-This court will not, ordinarily, reverse a correct judgment merely because the court below may have acted upon a bad rea

son.

APPEAL from the Knox Circuit Court.

FRAZER, J.-This was a suit (originating before a justice of the peace) by the appellee against the appellant, to recover for work and labor. The defense was, that the appellant had been compelled, as garnishee in a suit before a justice of the peace in Ohio against the plaintiff, to pay the indebtedness there. Without first showing that, according to the laws of Ohio, the magistrate there had jurisdiction of the matter, or that the particular cause had been brought within his cognizance by such notice as the laws of that State may require, a transcript of the proceedings was offered in evidence and excluded. This ruling presents the only question here, and from the appellee we have no argument upon it. On behalf of the appellant there comes

Curry v. Baker, Governor.

no question as to the intrinsic correctness of the ruling below, but it is said that the objection made below.to the transcript as evidence was not based upon the matter of jurisdiction, and that if it had been, the necessary evidence to obviate the objection might have been produced. The bill of exceptions, however, fails to sustain this statement, it being silent as to the particular reason urged by counsel or acted upon by the court as the foundation of the objection. Nor is this, perhaps, important. This court will not, ordinarily, reverse a correct judgment merely because the court below may have acted upon a bad reason.

It is certain that there was no error in the ruling. It is well settled, that the proceedings of courts of inferior jurisdiction will be deemed of no validity unless their jurisdiction is affirmatively shown.

Judgment affirmed, with costs.

W. E. Niblack, W. H. De Wolf, and T. Gazlay, for appellant.

J. S. Pritchett and O. F. Baker, for appellee.

CURRY V. BAKER, Governor.

AFFIDAVIT.-Contest of Election. The affidavit of an elector instituting a contest of an election, under the act of May 4th, 1852 (1 G. & H. 316), requiring of such contestor "a written statement specifying the grounds of contest, verified by the affidavit of such elector," is not bad for qualifying the averment of the truth of such statement by the words, "as he is informed and verily believes."

APPEAL from the Marion Civil Circuit Court.

RAY, J.-Curry filed his affidavit in the Marion Civil Circuit Court,setting forth, substantially, the following facts:That at the last general election in the State, in October, 1868, a clerk of the Circuit Court of Boone county, in said

Curry v. Baker, Governor.

State, was required to be elected; that said Curry was eligible to said office of clerk of said Boone county; that the only persons voted for for said office at said election were said Curry and one Abram O. Miller; that the aggregate number of votes cast at said election were 4,950, of which said Curry received 2,487, and said Miller 2,463, said Curry receiving a majority of all the votes so cast for said office, of twenty-four votes; that on the 15th day of October, 1868, the board of commissioners of Boone county declared the result of said election as aforesaid, and that said Curry was duly elected clerk of said county of Boone; that afterward the result of said election was duly certified by the clerk of the Circuit Court of said county of Boone, and transmitted to the Secretary of State of the State of Indiana, who received the same and filed it the office of Secretary of State aforesaid, in conformity to law in such cases made and provided; that after the said certificate of the result of said election was so filed in said office of the Secretary of State, said Curry, on the 17th day of November, 1868, at the office of the Governor of said State, demanded of him as such Governor, a commission for the said office. of clerk of the Circuit Court of said Boone county, which was refused, said Conrad Baker being then and there such Governor and the person of whom such demand was made. Said Curry further alleged, that the term of said present incumbent of said office of clerk had expired; and said incumbent is now holding said office to await the qualification of his successor.

Upon this statement, which was sworn to, said Curry moved the court for a mandate against Governor Baker directing him to issue a commission to said Curry as such clerk for the term of four years.

The court made an order directing that the Governor show cause, on or before the 12th day of December, 1868, why he will not issue a commission to said Curry as clerk, &c. Afterwards, on the 9th day of December, 1868, Gov

Curry v. Baker, Governor.

ernor Baker filed an answer showing cause. contained substantially the following facts:

This answer

That within ten days after the 15th day of October, 1868, Abram O. Miller, the competitor of said Curry for said office, filed in the auditor's office of said Boone county, his statement in writing, specifying the grounds upon which he intended to contest the election of said Curry, which statement was verified by said Miller, who was, at the time of filing his said statement, and at the time of said election, a qualified elector of said Boone county; that the said auditor gave notice to the clerk of said county that the election of said Curry was contested, to which was attached a copy of said statement of the contestor, Miller; which notice and copy of said statement was on the same day, to wit, October 21st, 1868, filed in the clerk's office of said county of Boone, and still remains on file therein; that the only certificate of the result of the election transmitted to the Secretary of State by the clerk of Boone county was received by said Secretary on the 31st day of October, 1868; and the Governor makes two papers so transmitted part of his answer. One of these papers is a certificate of the result of said election in respect to the entire ticket, and shows that Israel Curry received for clerk 2,487 votes, and Abram O. Miller 2,463 votes. The other of said papers, which the Governor makes "exhibit B" to his answer, is a copy of the notice of the auditor of said Boone county to the clerk thereof that said election was contested by said Miller, and containing a copy of the statement of the grounds of the contest of said election. This statement, if true, shows facts sufficient to entitle Miller to the office of clerk of said Boone county, as having been duly elected thereto at said election. There is appended to said statement an affidavit in the following words:

"Abram O. Miller swears that the foregoing statement and grounds for contesting the said election of said Israel Curry to said office of clerk of the Circuit Court of Boone

county aforesaid are true in substance and matter of fact, as he is informed and verily believes.

(Signed.)

ABRAM O. MILLER." The Governor further says, that he had never received any information that the contest of said election had been dismissed, decided, or otherwise terminated; but the truth is, the board of commissioners of Boone county decided said contest against said Curry and in favor of said Miller; and said Curry subsequently appealed from their decision to the Boone Circuit Court, in which said appeal is still pending, undecided and undetermined; and that he can not issue a commission to said Curry or Miller pending said contest. This answer was duly subscribed and sworn to before the clerk of the court below.

The plaintiff demurred, "because the said return and answer do not state facts sufficient to constitute a defense to this action; nor do they show any sufficient reason why the mandate herein should not be made peremptory."

The court overruled this demurrer. The plaintiff excepted, and being ruled to reply, failed, and suffered judg ment on demurrer.

The plaintiff now appeals; and the only error complained of is the overruling of the demurrer to the return.

The only question we are asked to consider is as to the sufficiency of the affidavit upon which the contest of the election rests.

One of the fundamental rules of construction, when applied to a statute, requires that effect shall be given to the

law.

The act under which this contest has been commenced is entitled, "An act to provide for contesting the election to any state, district, circuit, county, or township office." The act requires of the elector instituting the contest "a written statement specifying the grounds of contest, verified by the affidavit of such elector."

The grounds of contest are, "First. For malconduct