Rasberry v. Hicks, 199 N.C. 702 (1930)

Nov. 12, 1930 · Supreme Court of North Carolina

199 N.C. 702

E. A. RASBERRY v. S. H. HICKS, B. M. MERCER, M. O. GRIMSLEY, Composing and Being Now the Board of Elections of the County of Greene, State of North Carolina, and N. U. MEWBORN.

(Filed 12 November, 1930.)

Appeal and Error A e — Where question presented for review has become moot or academic the appeal will he dismissed.

Where the question involved on appeal to the Supreme Court is the choice of a party of one of two candidates in its primary, after the general election has been held the question becomes abstract or academic and the áppeal will be dismissed.

Appeal by plaintiff from Nunn, J., beard at Chambers in the city of New Bern, 17 September, 1930. From GeeeNE.

Appeal dismissed.

This is an action brought by plaintiff against defendants, plaintiff claiming that there were irregularities in a primary election and demanding certain relief.

The matter was heard before Nunn, J., who rendered the following judgment: “This cause coming on to be heard and being heard before the undersigned judge at Chambers in the city of New Bern, this 27 September, 1930, upon the complaint and affidavits .of the plaintiff and the defendants having demurred to his jurisdiction of the court, to hear and determine the questions in controversy or make any order in the matter, after argument of counsel for the plaintiff and defendants: It is considered by the court and ordered and adjudged that the court is without jurisdiction and the case is therefore dismissed and this plaintiff is taxed with the costs.” To the foregoing judgment plaintiff excepted, assigned error and appealed to the Supreme Court.

On the face of the returns plaintiff received 1,149 votes and defendant 1,181, a majority of 32 votes for the defendant Mewborn. On 3 October, 1930, plaintiff filed an amended complaint and contended that certain votes cast were illegal and should not have been counted by the defendant board of elections, and setting forth, among other things: “A primary election for the Democratic nomination for the office of sheriff of the county of Greene was duly held in Greene County, N. C., on 7 June, 1930, in which primary election the plaintiff, E. A. Basberry, and the defendant, N. U. Mewborn, were two of the candidates for the Democratic nomination to the office of sheriff, and that in said primary election as declared and announced by the said board of elections of the said county, the defendant Mewborn received the second highest vote, and thereafter made demand upon the said county board of elections for a second primary to determine the choice of the Democratic voters of the said county for the office of sheriff, and that in said second primary the two candidates were tbe plaintiff and tbe defendant Mewborn, and tbe said second primary was duly called by tbe said defendant board of elections of said county and duly beld on 5 July, 1930, as prescribed by law. . . . Tbat tbe plaintiff avers upon information and belief and upon tbe facts stated herein, tbat be was tbe choice of tbe majority of tbe duly qualified and registered voters who were entitled to vote, and did vote in tbe said election on 5 July, 1930, at tbe several precincts in tbe said county of Greene for tbe Democratic nomination for tbe office of sheriff of said county, and but for tbe unlawful and wrongful vote and irregularities in this complaint stated, tbe said plaintiff would have been declared and published as tbe Democratic nominee for tbe office of sheriff of said county, even though tbe said defendant board of elections certified tbat tbe defendant Mewborn had received a majority of 34 (32) votes over this plaintiff.”

Tbe board of elections, answering, among other things said: “Tbat tbe plaintiff and tbe defendant, N. U. Mewborn, were both represented by counsel at tbe various meetings and adjournments beld. These .defendants being advised tbat under tbe laws of tbe State of North Carolina their only duty, power and authority in tbe premises was to receive and tabulate tbe returns made by tbe judges and registrars of tbe various precincts in Greene County with reference to tbe candidates before tbe primary, so as to show tbe total number of votes cast for each candidate of each political party for each office, and when thus compiled, to make out returns in duplicate and file one copy with tbe clerk of tbe Superior Court and retain one copy, and to publish and declare tbe results. . . . Tbat tbe jurisdiction to bear and determine tbe facts and” issues set forth in tbe complaint herein is vested in tbe various registrars and judges of elections in tbe several precincts of Greene County, and their jurisdiction is exclusive, and tbat no provision is made by law for an appeal to these defendants or to this Court, and these defendants are advised, informed and believe tbat this Court is without jurisdiction to review tbe actions of the various registrars and judges of elections, or to bear and determine this action.

Tbe defendant, Mewborn, denied tbat there were irregularities as charged’by plaintiff, and among other things, said: “This defendant avers tbat tbe returns made by said board of elections were true and correct returns as received and tabulated by them, and they declared tbe result of said primary in accordance therewith. . . . Tbat tbe plaintiff fails to allege tbat be would be tbe nominee for sheriff if tbe votes of all persons whom be alleges were improperly received were withdrawn, and disregarded, and tbat tbe result of tbe election would thereby be changed, and that on account of such failure, tbe plaintiff has stated no cause of action.”

Plaintiff’s complaint was verified. 3 October, 1930. The answer of the board of elections of Greene County was verified 6 October, 1930. Defendant Mewborn’s answer was verified 7 October, .1930. This action was submitted to this Court under Rule 10, on Friday, 24 October, 1930. The general election was held on 4 November, 1930.

J. J. Hatch, J. Faison Thomson and J. S. Manning for plaintiff.

A. J. Albritton, Gormar & Hill and F. F. Wallace for defendant.

Pee Cukiam.

It will be readily seen if the judgment of Nunn, J., should be reversed by this Court, it could not benefit plaintiff, as the election has already been held on 4 November, 1930.

In Glenn v. Culbreth, 197 N. C., at p. 678, citing numerous authorities, it is said: “The law provided for the regular city election on the first Monday in May, 1929. It was conceded in the oral argument that the election was held and the defendants, commissioners, were elected. The injury complained of has thus become accomplished and completed. Hence, the appeal presents, in its final analysis, only a moot or abstract question. The uniform rule adopted by this Court is to the general effect that such questions will not be considered.”

“The appeal therefore raises a question which is abstract or academic.” Board of Education v. Commissioners of Johnston, 198 N. C., 430. The Court will take judicial notice of the fact that the general election was held on 4 November, 1930.

For the reasons given, the appeal is

Dismissed.