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Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. or constable, he must make a statement in writing setting forth specifically

1. The name of the party contesting, and that he was a qualified voter when the election was held.

2. The office which said election was held to fill, and the time of holding the same.

3. The particular grounds of said contest. This statement must be verified by the affidavit of such contesting party to the effect that the same is believed to be true. If the reception of illegal votes is alleged as a cause of contest, it is a sufficient statement of said cause to allege that illegal votes were given to the person whose election is contested, which, if taken from him, will reduce the number of legal votes given to him to or below the number of legal votes given to some other person for the same office.

(Feb. 10, 1892, p. 468, § 3.)-Parks v. Owens, 100 Ala. 634 (13 So. 756); Turnipseed v. Jones, 101 Ala. 593 (14 So. 377); Wade v. Oates, 112 Ala. 325 (20 So. 495).

461. (1687) Notice of nature of evidence.-No testimony must be received of any illegal votes, or of the rejection of any legal votes in any contested election commenced under the provisions of this article, unless the party complaining thereof has given to the adverse party notice in writing of the number of illegal votes and by whom given and for whom given, and at what precinct or voting place cast, or the number of legal votes rejected, and by whom offered, and at what precinct or voting place cast, which he expects to prove on the trial. Such notice must be served personally or left at the residence or usual place of business of the adverse party at least ten days before the taking of the testimony in reference to such votes. (Feb. 10, 1892, p. 468, § 2.)

462. (1688) When contest commenced; security for costs.All contests of elections provided for in this article must be commenced within twenty days after the result of the election is declared, except as in this article otherwise provided; and at the time of commencing such contest and of the filing the statement in writing, the party contesting must give security for the costs of such contest, to be filed and approved as in this article provided.

(Feb. 10, 1892, p. 468, § 3.)—Hilliard v. Brown, 103 Ala. 318 (15 So. 605).

463. (1689) Contest of senator or representative.-If the contest be of the election of a senator or representative in the legislature, the elector contesting must file in the office of the clerk of the circuit court of any county of the senatorial district, if such contest be of the election of a senator, or in the

Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. office of the clerk of the circuit court of the county in which the election was held, if the contest be of the election of a representative in the legislature, a statement in writing of the grounds of contest as provided in this article, and must give good and sufficient security for the costs of such contest, to be taken and approved by the clerk. Of the statement in writing the person whose election is contested must have ten days' notice before the taking of the testimony by the service on him of a certified copy of such statement by the sheriff or a constable of the county, and such sheriff or constable must indorse on the original the fact of such service, and such indorsement is presumptive evidence of the fact.

(Feb. 10, 1892, p. 468, § 5.)

464. (1690) Testimony; how taken.-The testimony in the case of a contest provided for in the preceding section must be taken by deposition under commission issued by the clerk of the court where the statement of contest is filed, which commission must issue on the party applying for the same making and filing an affidavit stating the name of the witnesses, the place of residence of such witnesses, and that the testimony sought and expected is material. The depositions must be taken on interrogatories filed in the office of the clerk after making and filing the affidavit, and of the interrogatories and affidavit and the names and residence of the commissioner or commissioners proposed to be appointed, ten days' notice must be given the adverse party by service on him personally or by leaving at his usual place of residence or business a copy of the interrogatories and affidavit, to which must be appended notice of the name and residence of the commissioner proposed to be appointed. Such service must be made by the sheriff or a constable of the county, and within ten days thereafter such adverse party may file cross-interrogatories, to which the party filing the interrogatories may file rebutting interrogatories; and thereafter commission may issue. Of the time and place of taking the depositions, the commissioner must give each party five days' notice in writing, which notice may be served by the sheriff or a constable of the county. If the witnesses reside or are to be examined within the county, the adverse party is entitled to demand that they be examined orally, separate and apart from each other, on giving notice within the ten days allowed him to file crossinterrogatories, that such examination is required; and if such notice be given, the commission issued must not be accompanied by the interrogatories filed, and must authorize and direct the commissioner to examine the said witnesses orally, separate and apart from each other, after giving each party

Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. five days' notice of the time and place of the examination. In the execution of all commissions to take testimony under this section, the commissioner must conform to and observe the requirements of the statute concerning the taking of depositions in civil suits at law, and has and may exercise all the power and authority by the statute conferred on commissioners; and against defaulting witnesses all such proceedings may be had and taken as are authorized by said statute.

. (Feb. 10, 1892, p. 468, § 5.)—Roney v. Simmons, 97 Ala. 88 (11 So. 740).

465. (1691) Depositions returned.-The commissioner must carefully envelope the depositions taken, with the commission attached, writing his name across the sealing of the envelope and indorsing thereon the names of the witnesses and the title and subject-matter of the contest, and direct the envelope to the clerk issuing the commission, and must, within five days after taking the deposition, file the same with the said clerk, or transmit the same by mail through the nearest postoffice. The clerk must, within five days after the taking of testimony has been finished, and the depositions received in his office, make and certify under the seal of the court a true and correct copy of the statement of the grounds of contest and of the return of service thereon, and must inclose the same with the depositions so taken and filed in his office, and must securely envelope the same, indorsing thereon the title and subject-matter of the contest, and direct the package to the presiding officer of that branch of the legislature before which the contest is to be tried, at the seat of government, and deposit the same, postage paid, in the nearest postoffice. (Feb. 10, 1892, p. 468, § 5.)

466. (1692) Costs taxed; execution issued. The package mailed by the clerk must be opened by the presiding officer and presented to the house over which he presides for such action as such house may deem proper. On the determination of the contest the secretary of the senate, or the clerk of the house, as the case may be, must certify the result thereof to the clerk of the court in which the statement of contest was filed. The certificate must be filed in the office of the clerk and shall have the force and effect of a judgment against the unsuccessful party for the costs of the contest. And the clerk having taxed the costs, allowing the fees and costs allowed for similar services in civil cases at law, must issue execution for the amount thereof in the name of the successful party. If the party contesting be the unsuccessful party, execution must issue against him and his sureties for the costs.

(Feb. 10, 1892, p. 468, § 5.)

Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. 467. (1693) Contest of chancellor.-If the contest be of an election to the office of chancellor, the party contesting must file in the office of the clerk of the circuit court of the county of the residence of the person declared to be elected, the statement of the grounds of contest as required in this article, and give good and sufficient security for the costs of the contest, to be taken and approved by such clerk. Immediately thereafter the clerk must enter the contest on the trial docket as a civil cause pending for trial in the circuit court, and the contest shall stand for trial and be heard in precedence of all other causes, civil or criminal, in said court, and must be proceeded in, tried, and determined as are other civil causes in courts of law.

(Feb. 10, 1892, p. 468, § 6.)

468. (1694) Same; procedure; procedure; testimony.-Within two days after entering the said contest on the docket of said court, the clerk must issue a summons directed to the party whose election is contested, accompanied by a certified copy of the statement of the grounds of contest, requiring such party, within ten days after the service of the summons, to appear and answer to the statement. The testimony on the contest must be taken by deposition as in civil cases at common law, but no affidavit, other than of the materiality of the testimony of the witnesses proposed to be examined, shall be required. Either party may, on giving five days' notice, require the examination before the commissioner to be oral, and that the witnesses be examined separate and apart from each other. The party against whom the depositions are to be taken must have at least five days' notice of the time and place of taking such depositions and of the name and residence of the commissioner or commissioners proposed. The circuit court must try the contest at the first term after the commencement thereof, and the contest must be deemed and taken to have been commenced with the service of the summons as provided in this section, if thirty days have intervened after such service; but for good cause shown the trial of the contest may be continued to the next term or to a special term to be appointed by the court; but such contest must be tried at the second term unless continued by the failure of the presiding judge to attend and hold such term or because of his incompetency for legal cause to try and determine the contest. The contest must be heard and determined by the court without the intervention of a jury.

(Feb. 10, 1892, p. 468, § § 6, 7.)

469. (1695) Contest of a judge of the circuit court.-If the contest be of an election to the office of judge of the circuit

Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. court, the party contesting must file in the office of the court of chancery of the county or district of the residence of the person declared elected, a statement in writing of the grounds of contest, verified by affidavit, as prescribed in this article, and must give good and sufficient security for the costs of the contest, to be approved by the register. On the filing of the statement and the giving of the security, the register must make and certify to the chancellor of the division in which the contestee resides a certified copy of the statement, and on receipt of the copy, the chancellor must indorse thereon an order appointing a day for the trial of the contest, not less than thirty nor more than fifty days from the day of the reception of the certified statement, and fixing the place of trial, which must be at some place-in the circuit in which the election was held, and where a court of chancery is required to be held, and must further order the register to issue a summons directed to the person whose election is contested, accompanied with a ⚫ certified copy of the statement, requiring him to appear within ten days after the service of the summons and make answer to the statement, which summons shall be served by the sherifť or a constable at least twenty days before the day appointed for the trial. The testimony must be taken by deposition, as is prescribed for the case of a contest of the election of chancellor.

(Feb. 10, 1892, p. 468, § 8.)

470. (1696) Contest of judge of the probate court.-If the contest be of an election to the office of judge of the probate court, the party contesting must file in the office of the clerk of the circuit court of the county in which the election was held, a statement in writing verified by affidavit, of the grounds of the contest as provided in this article, and must give good and sufficient security for the costs of the contest, to be approved by the clerk. On the filing of the statement and the giving of the security, the clerk must enter the contest on the trial docket as a civil cause pending in said court for trial, and after having made such entry, the clerk must issue a summons, accompanied with a certified copy of the statement, directed to the party whose election is contested, requiring him within five days after the service of the summons, to appear and make answer to the statement, which summons must be served by the sheriff or by a constable of the county. The contest is triable by the court without the intervention of a jury, and must be heard and tried in precedence of all other causes, civil or criminal, standing for trial in the court. Either party is entitled to subpoena to compel the personal attendance of witnesses on the trial of the contest, and against defaulting witnesses such proceedings

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