The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-01-14
Argument in the Moody
Gudger Contest.
HEARD ON ITS MERITS
The Case Against Albright Argued
Before a Sub Committee of the
Senate Committee on Post
Offices. Strong Sugges-
tion by Mr.. Pou.
Especial to News and Observer.

Especial to News and Observer.
Washington. D. c., Jan. 13.-House
elections Committee No. l today heard ar
gument of counsel in the Moody -Gudger
contest from the Tenth North Carolina
district. The committee me at 1O:30
o'clock and remained in open session until
5, when the argument having been con-
cluded it went into executive session.
The opening argument for the contest
ant Moody was made by ex-Congressman
Thomas Settle He was followed by
Frank Carter, of Asheville, and Chas. M.
Busbee, of Raleigh, for the contestee,
Gudger Then Mr.. Settle closed the case.
Col. V. S. Lusk, who is also one OF
Moody's counsel, was present, but did not
speak.
The argument on both sides was con-
fined almost exclusively to the evidence,
the chairman and some other members OF
the committee intimating quite plainly
that they were inclined to brush aside all
lega ltechnicalities and consider the case
on its merits.
This intimation eliminated the lengthy
argument that would otherwise have been
made on both sides regarding the effect
of the contestants death on the contest.
BASIS OF THE CONTEST.
The official returns as canvassed by the
Board of State Canvassers, and on which
Gudger's certificate of election is awarded,
gives 1900 votes to Gudger and 12,517
votes to Moody, or majority on the
face of the returns of 1873 for Gudger.
1t is insisted by the attorneys for
Moody that the entire vote from South
Waynesville precinct. in Haywood coun-
ty, should be rejected. This precinct re-
turned 266 votes for Gudger and 147 for
Moody, or majority of 119 for Gudger.
1t is also insisted that the entire poll
from Tryon precinct, in Polk county,
should be rejected. This precinct re-
turned 119 votes for Gudger, end 49 votes
for Moody, a majority of 10 for Gudger.
1t is likewise insisted that the entire
poll from the precinct of Shields, in Polk
county, should be rejected. This precinct
returned $50 votes for Gudger, and 60
votes for Moody. or a majority of so for
Gudger. 1t is also insisted that the en-
tire vote from the county of Buncombe
should be rejected.
The returns from this county give
Gudger 3,O29 votes, and Moody $3.50 votes,
or a majority of 339 for Gudger.
The rejection of these precincts over
comes the majority of 1873 accorded
Gudger and gives a majority Of 4S5 to
Moody.
The grounds on which it is asked that
b1n 10
lawful registration and illegal voting.
Moody being dead, cannot of course be
awarded the seat, even if the contest
should be decided adversely to Gudger.
But in such event the seat now held by
the latter would be declared vacant and
a new election ordered.
DEATH OF THE CONTESTANT.
The contestee Gudger sets up as a de-
tense that the death Of the contestant
Moody on February 5th, before the pres
ent Congress began and during the tax
ing of evidence, put an end to the con-
test. Attorneys for Moody contended
otherwise and the preparation of the case
continued
In addition to taking up the counties
and precincts the legality of whose vote
is challenged for bribery and unlawful
registering and defending that vote, the
attorneys for the contestee in their brief
set up as a further defense that the
death of the contestant abated the con-
test and that all the proceedings there
after were nullities They ask:
"Can any other result logically follow
the death of the contestant? He is the
actor, the plaintiff made so by the
statute, and he begins the action as the
statute prescribes. If he does not pursue
the practice as it is regulated by the
statute his action is dismissed. If his no.
tice is not served in time or if If is in
sufficient in law in respect to its alleea
tions. or if his testimony is not taken
within the period prescribed, the action ie
dismissed He is held to the duty OF nrose-
cutting an action begun in the court
not so closely perhaps, but as closely as
the terms of the statute require.
1T must be admitted that at the death
Of principal the authority of an attornev
ceases. This is so without execution IF
the cause of action survive. the attornev
does not represent the party to whom, II
survives until authorized by him Irnon
the death of this contestant. his interest
in the controversy absolutely Terminated
so far as he was concerned It then ended
as completely as if 1t had been an action
for personal images. If it survived as
claimed by opposing counsel. then new
parties should have been made r. the