DAVIS V. DAY'S ADM'X, &c.

(Filed October 9, 1896.)

1. Appellate practice- Partial transcript -Schedule Where the appellant and the appellee each files a schedule calling for certain parts of the record, it is the duty of the clerk to make a single transcript of such parts of the record as are called for by the two schedules, accompanying it with a single certificate; and appellant must pay the cost of the transcript as a whole if he obtains it to file for the purposes of his appellee. But if the appellant obtains and files a transcript of only such parts of the record as were called for by his schedule, and this partial transcript is apparently sufficient for the purposes of the appeal, the court will not, upon motion of appellee, dismiss the appeal, as appellant takes the risk, since the court will, on final hearing, affirm the judgment if the partial transcript is found not to be sufficient. Or if other parts of the record are shown to be pertinent a rule may be awarded.

2. Same The appellant, in order to protect himself from having to pay for unnecessary parts of the record, which may be ordered by appellee, may apply to the judge of the court rendering the judgment and obtain a schedule for only necessary parts of the record. Or if necessary parts of the record are copied at the instance of the appellee, he will be liable for the costs resulting therefrom.

Maxwell Davis and Otto Wehle for appellant.

C. B. Seymour and Anton Kutzleb for appellees.

Appeal from Jefferson Circuit Court, Chancery division.

Opinion of the court by Judge Hazelrigg.

This case is out on a motion by the appellee to dismiss the appeal because the appellant failed to file the transcript within the time provided by law, and on the further motion (the first failing) to affirm as a delay case.

It appears from the transcript before us, and which embraces a part only of the entire record, that upon the rendition of the judgment below the appellant filed a copy of it in the office of the clerk of the Court of Appeals, and was granted an appeal from so much thereof as allowed appellee, as administratrix, $300 as a preferred claim for the fee of her attorney in her suit to settle the estate of her deceased husband.

It appears, as may be stated here, that her husband died intestate, heavily indebted, and leaving no personal estate beyond the statutory exemptions. His real estate was encumbered by a mortgage to the appellant and others for more than its value; hence if the fee of the attorney for the administratrix is to be allowed as a preferred claim its payment falls on the lien holders.

After filing this copy here the appellant, desiring to file a transcript of a part only of the record, filed in the office of the clerk of the inferior court a schedule of such portions as he desired copied and gave notice as required by law (Civil Code, section 737, subsection 7a). Thereupon, and within the time fixed by the succeeding subsection of the Code, the appellee, Day, filed in the same office a schedule of such parts of the record as she desired copied.

The clerk appears to have copied and delivered to appellant the transcript which his schedule called for, and this the appellant has filed here within the time allowed. He also copied the parts of the record called for in the schedule of the appellee, but neither party being willing to pay for it, it remains in his office. Hence this motion to dismiss.

Manifestly it was the duty of the clerk below to have made a single transcript of such parts of the record as were called for by the two schedules accompanying it with a single certificate.

Subsection 12, section 737, provides that "at the close of the transcript the clerk shall certify in substance that it contains a true and complete copy of the record, or of such parts thereof as he may have been required to copy, according to the truth, and shall append an index, referring consecutively to the pages on which the copy of each pleading or other separate part of the record commences, and describing briefly the exhibits, if any."

Clearly, by the language "such parts thereof as he may have been required to copy according to the truth," is meant such parts as have been "required" by both parties, if in truth they both required parts of the record. A single transcript is contemplated and a single certificate.

Had this been done the appellant must have paid the cost of the transcript as a whole before obtaining it to file for the purposes of his appeal. In this case, however, we have seen that the appellant in fact obtained a transcript of such parts of the record as he directed to be made, and this partial record apparently is sufficiently complete to present the single legal question involved on the appeal. Whether it is or not the appellant takes the risk. On final hearing if it is thought to be otherwise, the judgment will be affirmed.

To the objection that under this construction an appellee may, by filing his schedule, require the appellant to pay for parts of the record foreign to the issues raised on the appeal, it is sufficient to say that an application to the judge of the court rendering the judgment may be made and a schedule obtained for only necessary parts of the record.

The provision for such a schedule does not seem to have been repealed, subsection 1 of section 737 directing that "the clerk of the court rendering a judgment shall copy the entire record, or parts thereof, according to the directions of the judge of the court or of the parties to the appeal, etc.;” or, if unnecessary parts of the record are copied at the instance of an appellee, he will be liable for the costs resulting therefrom.

We have seen that the appellant is here with a record which is apparently sufficient for the purposes of this appeal. At any rate nothing now appears to the contrary. If other parts of the record are shown to be pertinent, a rule may be awarded. The motion to dismiss is, therefore, overruled,

As the question raised on the merits of the appeal seems not to have been determined heretofore by this court, the motion to affirm as a delay case is likewise overrule.

HOPKINS, &c. v. SWIFT, &C.

(Filed October 9, 1896.).

1. Common schools- Contested election of trustee-The county school superintendent has no authority to determine a contested election for school trustee, and jurisdiction to do so can not be cenferred upon him by consent or agreement of the parties interested. The jurisdiction to determine such a contest is in the county board of contest created by section 1534 of the Kentucky Statutes.

2. Same Appointment by county superintendent-When there is a tie vote in a race for school trustee, and that fact is certified to the county superintendent.,

there is a vacancy which he may fill by appointment.

But as no such state of

facts was certified to the county superintendent in this case, and he was mistaken in supposing that there was a tie vote, no vacancy existed and an appointment made by the county superintendent to fill the supposed vacancy was void.

3. Same-In a regular contest the county superintendent may recognize a trustee "among the contestants" until the dispute is settled. But in this case there was no regular contest, and the person appointed was not one of the contestants.

4. Right of voter to change vote after it has been recorded-In cases of viva roce voting, as in an election for school trustee, where a vote has been recorded and the voter has left the table and other votes have been cast, the voter can not then have the record of his vote changed upon the ground that by inadvertence or mistake he called the name of a candidate for whom he did not. intend to vote.

W. B. Keys and Thomas P. Cook for appellants.

L. C. Linn, jr., for appellee.

Appeal from Calloway Circuit Court.

Opinion of the court by Judge Landes.

On the first Saturday in June, 1895, an election was held in White Common School District No. 34, of the county of Calloway, for the purpose of choosing a trustee for the common school of the district for the term fixed by law.

It appears that due notice of the election had been given; that it was held at the district schoolhouse, and that it was held and con-ducted in all respects as prescribed by the statute. (Kentucky Statutes, section 4434.)

The appellant, Elias Hopkins, and William Lee, residents of the district and duly qualified, were the only candidates for the office, and at the close of the polls it was ascertained by the judge of the election that 25 votes were cast for the appellant and 23 for the said William Lee, and, the appellant having received a majority of the votes cast, the judges of the election, as required by the statute, issued and gave him a certificate of election, and reported to the county superintendent, in writing, within the time required by the statute, the fact that the appellant was elected.

After receiving the certificate, and in due time, the appellant,, Hopkins, qualified by taking the oaths required by law before a justice of the peace of the county, and forwarded to the county superintendent à certificate of his qualification, signed by the justice.

A few days after the election complaint was made to the county superintendent by the appellee, J. H. Swift, who was the chairman of the trustees for the said district, that the appellant, Hopkins, was: not lawfully elected, and, at his instance, the county superintendent undertook to investigate the case and to ascertain whether or not the appellant, Hopkins, was properly elected, and entitled to the office.

It is to be observed that William Lee, who was the competitor of Hopkins for the office at the election, made no complaint, and did not propose to contest the election, and did not authorize anyone to contest it for him, and that there was no written notice of contest.. Besides, it does not appear from the record that the appellant, Hopkins, was, either in person or by attorney, a party or that he consented to this investigation, although he was present a part of the time during which it was in progress.

But a great many witnesses were examined before the county superintendent, and their testimony related mainly to the vote of one W. L. Clayton, which was cast at the election, recorded on the poll book, and counted for the appellant Hopkins; and this was the basis of the complaint, it being claimed that Clayton's vote ought to have been recorded and counted for Lee instead of for Hopkins, The testimony was in substance that when Clayton offered to vote his name was entered in the poll book by direction of the judge, and, when asked by the judge for whom he wished to vote, his answer was that he would vote for appellant Hopkins, and his vote was accordingly so recorded by the clerk; that he at once left the table where the officers of the election were taking the votes, but remained in the room a few feet from the table, and that two other voters presented themselves, and their votes were given and recorded; that after the lapse of several minutes Clayton went up to the table on which the poll book was lying, and, pointing to the poll book which showed that his vote was recorded for Hopkins, said to the judge that he wanted it changed from Hopkins to Lee, as he intended to vote, and had in fact voted, for the latter and not for the former, and requested the judge to change it, but that the judge refused to change it or permit it to be changed.

Several of the witnesses stated, and the proof seems conclusive, that when asked for whom he would vote, Clayton answered: "Hopkins is a poor man, and I am a poor man, and I will vote for Hopkins."

At the conclusion of the examination of the witnesses the county superintendent decided that the vote of Clayton ought to have been changed by the officers of the election, as requested by him, and that if the change had been made there would have been a tie vote between Hopkins and Lee, and, assuming that there was a vacancy in the office, proceeded at once to appoint and quality the appellee, T. P. Tarry, to fill the vacancy.

The decision of the county superintendent was made on the 6th day of June, 1895. On the 8th day of July following, in pursuance of a call of appellee Swift, as the chairman of the board of trustees, a meeting of the trustees was held at the district schoolhouse for the purpose of employing a teacher for the district school for the school year. That meeting was attended by appellants Hopkins and T. P. Jones, one of the trustees, and appellees Swift and Tarry, the latter claiming to be a trustee by virtue of the appointment made by the county superintendent to fill the vacancy supposed to exist as above stated.

At that meeting appellants Jones and Hopkins, being a majority of the trustees, if Hopkins was lawfully in office, by written contract employed appellant, Ellen Keys, to teach the school for five months, and appellees Swift and Tarry, who constituted a majority of the trustees, if Tarry was lawfully appointed and in office, by a similar contract employed appellee, M. T. Morris, as the teacher. This being the situation of affairs, the appellants commenced this action in the Calloway Circuit Court, in which they asserted the right of appellant Hopkins to the oflice of trustee, and the right of appellant, Ellen Keys, under her aforesaid contract, to teach the district school, which rights, they alleged, were being invaded and intruded upon, and of which they were being deprived by the ap pellees, and praying that the appellees be enjoined and restrained from interfering with them in the exercise of the rights claimed by them in the premises.

Motion was made on notice by the appellants for a temporary in

junction, issue was joined upon the answer, denying the rights claimed, and setting up the claim of appellee Tarry to be the lawful trustee under the appointment made by the county superintendent, and the claim of appellee Morris to have a valid contract to teach the district school upon the facts detailed above, and the case was submitted to the court and heard upon oral testimony.

Upon the hearing the lower court adjudged in substance that the officers of the election had the lawful right and ought to have changed the vote of Clayton from Hopkins to Lee, and that "said change would have resulted in a tie, and thereby caused a vacancy;" and, further, that the county superintendent had the lawful right to appoint a trustee for the district, "as the officers of said election failed to cast the deciding vote;" and that the appointment of appellee Tarry as trustee by the county superintendent, and his acts as trustee under the said appointment, were valid. The injunction prayed for was accordingly denied and the petition dismissed, and that judgment is before us on this appeal.

The facts brought out in the testimony given on the trial of the case in the court below, relative to the vote of Clayton at the election for trustee, was substantially as above stated, and, as it appears from the record, do not differ materially from the facts detailed by the witnesses in the hearing of the case before the county superintendent, and, after a careful investigation of the case as it is presented in the record before us, we have not been able to find that the judgment appealed from has anything, either in the facts or the law, to sustain it.

It appears that the statute regulating such election was literally complied with, and that, upon the votes as cast and recorded, the appellant Hopkins received a majority of the votes.

It further appears that he received a certificate of his election in due form, and that he qualified by taking the oath required, and entered upon the discharge of his duties as trustee. He thus became an officer in fact, with all of the evidence of his right to the office that was required by the law, and could not be deprived of his right except in the manner prescribed by law.

The only method of contesting such elections is that provided by sections 1534 and 1535 of the Kentucky Statutes, which provide a board for determining the contested election of any officer elective by the voters of a county "or any district therein, except members of the General Assembly," and prescribe the steps or method of procedure. This board is known as the county board of contest, and has jurisdiction in respect of common school districts as well as of other districts in a county.

There is no statute under which a county superintendent has the authority to determine any such contest, and jurisdiction to determine a contested election of a district trustee can not be conferred by consent or agreement of the parties interested. So that in this case it is immaterial whether the appellant, Hopkins, and his defeated competitor, Lee, were before the county superintendent or whether they were parties to the proceeding before him, or whether they consented that he might determine the question of the right of Hopkins to the office or not. In either case and in any event the County superintendent was without jurisdiction or authority over the question, and the proceedings before him and his finding, or socalled "judgment," were void and of no force whatever in law. There was no vacancy in the office of trustee which he was empowered to fill. A vacancy in office is defined by the statute to be "such as exists where there is an unexpired part of a term of office without