The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1903-10-13

ES1FNS - bf4t. - 11AAs
"Cnrk +. Clayton. 81 Cong
Conner v. Clayton. - Cong
Willis -. Hardy ) Cong.
I'm Hunter i. Rhea. testimony HI bees
taken and briefs flcd While the commit
To-, expressed the opinion that 1t did no.
lose jurisdiction BY the refusal OF the
contestant TO prosecute the case, yet TREY
did not examine the evidence. but repit
ed in favor OF the contc~tee. In Conner :
Clayton. the taking OF testimony had Pho
cecded FOR some time when Contestant
abandoned the contest. The committee
reported these facts and the House &C.
clared the conte>tee elected.
The same result must necessarily toI
low the death OF the contestant. IN 80 fer
as the prosecution Of the contest i CO..
cc.1et. The cases all speak of 4 con
testant. OF prosecution. Of parties. OF a
withdrawal. OF an abandonment. and Win
only one exception Ckelly Y. Harris. e
and H.. 25D III all eases where tile cor
testant abandoned the contest or neglcc.
ed to prosecute II. the House. without IN
vestigation. treated the contest a. al ae
ton between the parties and affirmed
the right OF the conteStcc te the seat.
Can any other result logically follow
the death OF tho contestant He H. the
III lAAi4AAtAA i4$A'1 - - Ni+N
and he begins the action as the statute
prcscribeS. If he does not pursue tho
practice as it i regulated hy the statute
his action Is dismissed. II ms notice d
not served IN time. or If II Is Insufficient
in law in respect TO its allegations, or II
his testimony IS not taken within The
period described. his action is dismissed.
He is held to the duty OF prosecuting his
case. as he would be held to the duty ct
prosecuting an action begun in the courts.
not SO closely perhaps, but as closely n
the terms Of the statute REQUIRE.
1T must be admitted that at the death
Of a principal the authority OF an attorney
ceases. This IS so without exception. II
the cause Of action survive, the attorney
does not represent the party to whom
it survives until authorized by him. Upon
the death of this contestant, his interest
IN the controversy absolutely terminated,
50 far as lie was concerned. 1t then end
ed as completely as If it had been an ac-
ton for personal damages. If it survived
as claimed by opposing counsel. then new
parties should nave been made. If the
controversy was of such character as that
the entire electorate OF the district were
parties IN interest. one or more OF such
parties should have been made proreCu
tors or plaintiffs and the contest continued
N llclI name. cry surrey the dlIcIutNN
representing the contestant could not cpr-
tinue to exploit the contest in the name
of the dead man for their own benefit.
| And it appears from the record that the
attorneys. after the death OF the contest
ant, continued to call themselves his 1T
torneys and to sign process and papers as
such. (See page 1922
For whom We're they attorneys? Not
, for the contestant, for he was dead; not
for his widow, for 1t does not appear that
she desires the contest continued. They
had no standing in reference to the pro-
ceeding unless they were retained Dy
somebody, and that somebody, If he had
authority under the law to assume the
right to continue the prosecution after
the contestants death. ought to have
been made a party to the action.
Suppose the contestant had died after
! notice of contest and before any further
action had been taken and had employed
no attorney. Who would then have
further prosecuted the action? Who would
then have given notice to take dispositions
or rave lone any other act in relation
to the prosecution of the contest? Sup
pose the attorney and the contestant had
both died? What would have been the
status Of the litigation?
Nv III IIdJ ttit vase VI -1dIhtS W.
O'Connor is not an authority in this case.
There the contestec died and his sue
ccssor was elected to fill the vacancy, sue
ceedcd to his title and occupied his seat.
There the parties to the proceeding re-
mained; the plaintiff the contestant) cor
fnued the prosecution. The newly elect
cd person took the place Of the contestcc,
standing upon and defending his title; and
there was no lack Of parties.
Here the contestant dies and no one
takes his place. No plaintiff or contest
ant appears thereafter in the proceedings.
No elector IN the District IS sufficiently
interested in the controversy to come in
and make himself a party and prosecute.
II the cause Of action in the statutory
proceeding survived, it survived to sore
body and that survivor should have been
made a party. 1t seems here that only
the attorneys survived and they are seek
ing to continue the contest without a
client. Do the terms Of the statute iuSti-
fy or allow them TO do 50?
one word a. TO the effect Of a ruling
that any one, being an clector in the
district, can prosecute a contest like tbs.
that under the provisions Of the statute
the institution Of d contest is not limited
to the defeated candidate. If any one
can rlghtfuIiy continue such proceeding
upon the death Of the contestant. such
person could with equal propriety institute
the proceeding originally. He could DO
50, # the defeated candidate declined o,
delayed to do 50 himself. by notice served;
or could anticipate any proceeding on tho
part OF the person especially authorized
by the statute, and such proceedir ny would
bar the right OF the regular contestant
to begin proceeding, on his own account
Again, it IS TO be considered, what
would be the effect Of the construction
OF the statute as insisted uDon by the OPP
posing counsel? II would authorize a
contest TO be instituted BY any clector ia
any district IN the country. It woulq
subject am rerson elected to the House
10 the annoyance and expense Of defend
ing 4 contest, if any %elector in his district
"a" ut to institute one for any purpose
whatsoever.
1t seems to Us that 10 give this elastic
and comprehensive construction to the
statutory provisions regulating confess.