The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-10-11
MOOOY'S DEATH ENDS
CAUSE OF ACTION
Lawyers Fighting Gudger
Have No Authority.
AN ABSURD CONTENTION
Is the One That Any Voter Can Institut
Contest When The Claim
ant for the Pace is
Dead.


Gudger, who was elected to Congress in
the tenth district last year, have prepared
their brief. His attorneys are Hon. c. M.
Busbee, of Raleigh; Luther & Wells and
Frank Carter, Esq., of Asheville. 1t will
be remembered that Hon. j. NJ. Moody
instituted contest against Mr. Gudger.
After the contest was instituted Mr..
Moody died. 1t was generally supposed |
then that the contest would abate, hut
the attorneys engaged by Mr.. Moody coa-
tinued the contest as if their client had
not died. The attorneys for Mr. Gudger,
in their brief. before entering upon the
merits OF the case, discuss the question
whether contest can legally be conduct
ed for seat in Congress for a man who
is dead That is a rather novel and In
teresting question, and in arguing that
the contest abated when Mr.. Moody died,
the attorneys for Mr.. Gudger say:
Before entering upon the consideration
of this case there is preliminary ques-
ton to be disposed of, to-wit: Did the
contest instituted by j. NJ. Moody, under
the provisions of the state. asserting his
right to the seat in the House of Repre-
sentatives occupied by the contestee, abate
upon his death?
"The contest was begun on December
goth, 1902, by service of notice in due
form by James M. Moody, contestant, in
which he claimed that he was elected The
answer of the contestee was served on
January 18th, 1903 The contestant be-
gan taking testimony on January 22d.
l. 4nIx, - he hn
died on February 5th, 1908.
The contestee on February 9Th de-
INJURED to the taking of any further tes-
timony, averring that the alleged contest
abated by the death of the contestant.
THE further proceedings in this con-
test that is the continuance of the testi-
mony by the attorneys for the contestant
and the taking of testimony by the coz
testee, do not bar the right of the con
testee to insist upon this objection; and
if the same is well founded, all the pro
ceedings hereafter had were utilities.
"The constitutional right of the House
of Representatives to inquire into and
pass upon the title of any member to the
seat occupied by him is not questioned.
The Constitution, Art. 1, Sec. 5, plainly
makes the House the sole judge of the
election, returns and qualifications of its
members Its jurisdiction and power uE
der this section is sole and supreme. In
such manner as it may deem advisable,
it may exercise this constitutional prero-
gative and no one may question its ac-
ton. But the exercise Of this power must
originate with the House. BY resolution
or other original affirmative action it
must declare its purpose to investigate
and adjudge.
''But the provisions of Sec 105 ct seq.
1ofo
authorize an adversary proceeding on the
part OF one who claims to have been
elected to the controverted seat. He must
''give notice in writing to the member
whose seat he designs to contest of his
intention to contest the same There is
the authorized controversy-there is the
claim which is to be asserted 1t is the
personal claim of the contestant to the
seat occupied by the contestee; claim
based upon the facts alleged in the notice
to which answer is made by the contestce
and issues joined upon the pleadings.
at is a personal controversy. The
statute designates them as parties. Sec.
108 provides for service of notice of TAX
ing dispositions on the opposite party.
Sec. Is refers to the contestant and con-
testee as parties. Sec. 121 limits the tes-
timony to be taken by either party to the
contest to the facts alleged or denied n
the notice and answer. Throughout the
chapter it is plain that the statute re-
CARDS the proceeding authorized by it as
a personal controversy. with a plaintiff
and a defendant. a contestant and a con-
testee, the one asserting his title to the
seat occupied by the other and the other
denying the claim.
'The technical action inter parties pro-
vided for by the revised statutes abates on
the death of either party, but the power
of the House to adjudicate any question
of title involved in that action survives.
Paine on Elections. Sec. 1043.
1T is not necessary for the contestee to
take the position that the action abates
upon the death of either party" There
Is a clear distinction between the death
of the contestant and the death of the
contestee. The death of the contestant
removes the person who instituted and
is prosecuting the action: his title sur
yves to no one, The death of the con-
testee removes the person who is exercis-
ing the right of occupation. His death
ought not to impair the action of the
contestant who is asserting an alleged
title in himself to the seat.
This seems to have been the opinion
of the House in the case of Mackey vs.
O'Connor, cited in the brief of the other
sue. III InaI case the cOnIeSuee QleG al
ter issues had been joined. and the testi-
mony had been taken and the controversy
stood ready for trial. The report de-
cared shat the right of the contestant,
as also of the people of that district, who.
after all. were the parties interested, TO
nave the facts of that election inquired |
into and adjudicated by the House, cannot |
be changed by the fact of the death Of
the contestee. If the contestant really |
received at that election the largest num-
Der of legal votes, it is his right and the |
right of the people of that district that |
ne be awarded the seat he was justified |
to fll"
And so McCrary. in his work on cleo |
tons. declares in the citation in the op-
posing brief that the House may, in its |
discretion, inquire into the validity of the |
election OF one of its members. without |
any formal contest having been instituted. |
1T has been repeatedly held that con-
q hNx.I 49, - n