The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1903-10-13
MOOOY'S DEATH ENDS
CAUSE OF ACTION
Lawyers Fighting Gudger
Have No Authority.
AN ABSURD CONTENTION
Is the One That Any Voter Can institute
Contest When the Claim
ant for the Pace is
Dead.

The attorneys for Hon. James 81.
Gudger, who was elected TO Congress IN
the tenth district last year. have prepared
their brief. His attorneys are Hon. c.. NJ.
Busbee, of Raleigh; Luther & Wells and
Frank Carter, Esq, Of Asheville. 1t viii
be remembered that Hon. j. NJ. Moody
instituted a contest against Nh. Gudger.
After the contest was instituted Nj.
Moody died. 1t was generally supposed
then that the contest would abate, hut
the attorneys engaged by Mr.. Moody con
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 a contest can legally be conduct
ed for a 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 a preliminary ques-
ton to be disposed Of. to-wit: Did the
contest instituted by J. NJ. Moody, under
the PROVISIONS Oh lIc Sldlt, dSSeItIuS NE
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 a notice in due
form by James NJ. Moody, contestant, III
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,
and pending the taking Of the same, he
died on February 5th, 1908.
The contested, 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 cor
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.
c~eedings 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
1IoIlDe1S. us JURISDICTION ant power IL
der this section is sole and supreme. In
such manner as 1t may deem advisable,
it may exercise this constitutional prero-
F., gative and no one may question its &C
ton. But the exercise OF this power must
originate with the House. BY resolution
or other original affirmative action =
must declare its purpose to investigate
and adjudge.
But the provisions of Sec. los ct seq.
Of the revised statutes contemplate and
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. It is the
personal claim Of the contestant to the
seat occupied by the contestce: a claim
based upon the facts alleged in the notice
to which answer j. made by the contest2e
and issues Joined upon the ~pleadings.
ct is a personal controversy. The
statute designatcs them as parties. See.
! los provides for service OF notice OF TAX
ing dispositions on the opposite party.
Sec. IS refers to the contestant and con-
tcstce as parties. Sec. III limits the tes~
timony to be taken by either party TO the
q " AEIA 4fttbp tlli'Stt vi IN II
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-
t~estce, the one asserting his title to the
scat 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 poWe~
of the House to adjudlcate any question
of title involved IN that action survives.
Paine on Elections. Sec. 1913.
1t is not necessary for the contestee 20
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
! contested. The death of the contestant
removes the person who instituted and
is prosecuting the action: his title sur
wives to no one. The death Of the con-
te,tee removes the person who Is exercis-
ing the right Of occupation. His death
ought not to impair the action Of tie
/ 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
side. In that case the contestee died ar
ter issues had been joined, and the test
mony had been taken and the controversy
stood ready for trial. The report de-
clared that the right Of the contestant.
IS also Of the people Of that district. who,
after all. We're the parties interested. to
have 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 mum
Der of legal votes. it IS his right and the
right Of the people Of that district that
he be awarded the seat he was justified
to FILL"
':And 50 McCrary, in his work on cleo
tons. declares IN the citation IN the op-
posing brief that the House may, in It's
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 a con
test can be Abandoned by the contestant.
and In such case the House will continue