CHARLESTON.

#### Taylor *et al v.*Maynor *et al.*

Submitted January 27, 1899

Decided April 22, 1899.

Officers and Elections— *Writ of Error*— Dismissal—Failure *to Prosecute.*

When the matter in controversy is the possession of an office, and the plaintiff in error fails to file a brief or prosecute his writ of error until after the expiration of the term of the office in question, the writ of error will be dismissed; at the costs of plaintiff in error, (p. S89.)

Error to Circuit Court, Fayette County.

*Certiorari*by Mark D. Taylor and others against D. L. Maynor and others. Judgment for plaintiffs, and defendants bring error.

*Dismissed.*

C. W. DilloN and A. P. Farley, for plaintiffs in error.

J. H. McGinnis, for defendants in error.

McWhorter, Judge:

On the 24th day of May, 1895, the town of Mt. Hope, in Fayette County, was, by the circuit court of said county, duly incorporated. On the 15th day of December, 1896, at a meeting of the council of said town, George Rogers, 0. F. Maynor, and Frank Brumagen were appointed commissioners to superintend and hold the election for municipal officers to be elected on the first Thursday in January, 1897, which election was held on the 7th d)ay of January, 1897, under section 17, chapter 47, Code. On the fifth day after such election, Sunday excluded, D. L. Maynor, mayor, A. P. Bailey, recorder, and F. M. Bailey, E. N. Smith, Otis Warden, Enoch Smith, and John Gwinn, councilmen, met as a canvassing board to ascertain the result of the election, “the business of election was taken up, and the returns failed to show who was voted for in said certificate. No election declared.” At another meeting of the council, held at the mayor’s office January 18, 1897, by order of the *589mayor, to ascertain the result of said election, the same officers were present as before, the proceedings show that the poll books returned by the recorder were examined by the council, and they refused to confirm said election. The mayor and recorder and councilmen, so acting as a canvassing board to ascertain the result of the election, were candidates for re-election at said election to' the several offices they were then occupying. Mark D. Taylor, Elbert Smith, W. H. Sampson, Enoch Smith, P. M. Snyder, T. C. Combis, and Owen Davis, candidates for the offices of mayor, recorder, and councilmen against the said Maynor, in said election, filed their petition in the circuit court of said Fayette County, praying for a writ of certiorari to remove said case from the mayor and council of said town into said circuit court, which writ was awarded and duly served. The said mayor, recorder, and councilmen answered said petition, and brought into court their records, and the poll books and tally sheets, and the court heard the case, and ascertained that the petitioners were duly and legally elected to the various offices to which they had been candidates in said election, and entitled to qualify as such officers, and enter upon the discharge of their respective duties. The defendants moved to set aside its findings and judgment in the case because the same was contrary to the law and the evidence, and grant them a new trial, which motion the court overruled, and gave judgment for costs against defendants. The' defendants tendered two several bills of exception, which were signed, sealed, and saved to them. The defendants applied for and obtained a writ of error and supersedeas. Under chapter 47 of the Code, the term of office under said election was one year from the 1st day of February, 1897. The appellants filed no brief, and failed to prosecute their writ, until after the term for which the petitioners were elected had expired, and there cau be no issue between the parties except the costs, and, there being nothing to decide, the writ of error will be dismissed, at the costs of appellants.

*Dismissed.*