Opinion
No. 36860.
April 12, 1948.
ELECTIONS.
A second petition for judicial review of executive committee's decision in primary election contest, filed four months after committee's decision, was dismissed as not having been filed forthwith as required by statute, notwithstanding that second petition was filed four days after overruling of suggestion of error in case in which order dismissing first petition without a hearing on the merits was affirmed, where delay was result of petitioner's persistence in erroneous course of procedure (Code 1942, secs. 3158 et seq., 3182).
APPEAL from Special Court of Issaquena County.
Brunini, Brunini Everett, of Vicksburg, for appellant.
The special court of Issaquena County erred in sustaining the motion of appellee to dismiss the petition of appellant for judicial review of the order of the Executive Committee of the Democratic Party of said county on the grounds that the same was not filed in accordance with law.
Austin v. Barber, 88 Miss. 553, 41 So. 265; Briggs v. Gautier, 195 Miss. 472, 15 So.2d 209; Chinn v. Cousins, 201 Miss. 1, 27 So.2d 882; Hayes et al. v. Abney et al. 186 Miss. 208, 188 So. 533; Harris v. Stewart, 187 Miss. 489, 193 So. 339; Shaw v. Burnham, 186 Miss. 647, 191 So. 484; Turner v. Henry, 187 Miss. 689, 193 So. 631; Smith v. Deere, 195 Miss. 502, 16 So.2d 33; Pittman v. Forbes, 186 Miss. 783, 191 So. 490; Minick v. Minick, 111 Fla. 469, 149 So. 483; Tallman v. Ladd, 5 F.2d 582.
Ernest Kellner, of Greenville, for appellee.
Under statute requiring petition for judicial review of Executive Committee's denial of primary election contest to be filed "forthwith" after action of the Executive Committee, a misconception by the contestant of the proper procedure would not excuse a delay of four months.
Pittman v. Forbes, 186 Miss. 783, 191 So. 490; Turner v. Henry, 187 Miss. 689, 193 So. 631; Harris v. Stewart, 187 Miss. 489, 193 So. 339; Green v. Robinson, 3 (4 Miss.) How. 105, 121; Smith v. Deere, 195 Miss. 502, 16 So.2d 33; Lamas v. Renaldo, 151 Miss. 325, 117 So. 331; Darnell v. Myres, 202 Miss. 767, 32 So.2d 684; Hayes v. Abney, 186 Miss. 208, 188 So. 533; Chinn v. Cousins, 201 Miss. 1, 27 So.2d 882; McNulty v. Vickery, 126 Miss. 341, 88 So. 718; Watkins v. Mississippi State Board of Pharmacy, 170 Miss. 26, 154 So. 277; Lyon v. City of Payette, 38 Idaho 705, 224 P. 793, 794; Code of 1942, Sec. 3182; 4 Words and Phrases (3 Ed.), p. 637.
Here is the sequel to Darnell v. Myres, 202 Miss. 767, 32 So.2d 684. The suggestion of error in that case was overruled on January 12, 1948, and four days later a new petition for a judicial review was filed. This was nearly four months after the date of the order of the executive committee, which the petition seeks to review. Appellant endeavors to excuse the delay on the ground that the order of dismissal affirmed in Darnell v. Myres, supra, was upon a procedural point and that he has not yet had a hearing on the merits.
The procedural point that appellant was not properly in court under his first petition was plainly raised in the trial court when that petition came on for hearing on October 17, 1947. Had appellant played safe, and taken a nonsuit at the opening of the hearing on that date, and thereupon had at once filed a new and correct petition, he would still have been in time, — he would have been eight days earlier than in Harris v. Stewart, 187 Miss. 489, 501, 193 So. 339, wherein the new petition, filed on October 25th, was allowed as being within time in view of all the circumstances.
But appellant persisted in his erroneous course of procedure, with the result of the long delay as first above mentioned. We may be sure that without the special provisions to secure speed in its administration, the feature of the judicial review would never have been included in the Corrupt Practices Act, Code 1942, Secs. 3158 et seq., and that any remarkable relaxation in that respect was never contemplated. There is again presented, therefore, a case to which the concluding statement by the Court in Turner v. Henry, 187 Miss. 689, 696, 193 So. 631, 632, is completely applicable: "A misconception by appellant, if there was such, of the proper procedure, was no excuse for the delay."
The motion of appellee to dismiss the present petition because not filed forthwith as required by Section 3182, Code 1942, was properly sustained by the trial judge, and his action in so doing must be affirmed.
Affirmed.
Roberds, J., took no part in this decision.