The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1922-12-24
MESSER WINS IN
FIRST FIGHT FOR
PROBATE ] j D &c
Writ of Mandamus Granted
Forcing Circuit Clerk to File
Contest d--Party
Fight Precipitated


CLANToN, Ala, Dec. 23.-(Spe-
oial. )-Rev. c. d. Messer. democrat,
who is eontesting the election OF
Judge l.. II. Reynolds. republican, as
probate Judge of Chiffon county,
won the first skirmish in his fight
Saturday when petition for a writ
of mandamus brought by him against
NJ. d. Foshee. circuit court clerk, was
granted Tho decision of Judge b.
X McMorris means that Foshee will
have to approve the bond filed by
Messer as security for costs arising
out of his contest against Judge
Reynolds unless he appeals. No date
for the hearing of the contest has
been set
An imposing array of legal talent
locked horns today in the hearing
of the petition for writ of man
damus. Messer was represented by
j. Fritz Thompson OF Birmingham.
while Foshee was represented by ".
ID. Street of Guntersville, Reynolds
and Reynolds of Clanton, and J. ..
Middleton of Mobile. The contest Is
Regarded mere as II poiieieoi A'sAt
which F'oshee is placed on Reynolds
side. Hundreds crowded the court
house today.
First Clash Comes
The first clash came when Messer
attorney, made a motion to try the
two cases together but 1t was finally
agreed that the mandamus case
would be tried first. Forty seven
demurers were offered by Foshees
attorneys to quash the man
damus the chief one being offered by
REYNOLDS and Reynolds, which tended
to show that whether or not the pohu
was approved by the circuit clerk
was a judicial act of the clerk ana
could not be controlled by man
damus, several cases being cited 10
prove this.
Another point was that, the peti-
ton was not filed. This was de-
INJURED to by the Messer's attorney
as being impossible and IT was
argued that the petition was pre-
sented to the circuit clerk for filing
and as he refused they had no way
OF forcing him except by mandamus-
The bond was in insufficient form
il was said but the security was
worth over 100000, and 1t was
through craftsmanship that the circuit
clerk refused to approve the poho
and to perform his official dutS.
Claim Messer Not Voter
The demurrers were oVerruieu ny
Circuit Judge Il. X. McMorris anu
Foshee then tried to show that Kew.
G i Messer was not qualified
voter Of Chiffon county. Mr.. Messer
was placed on the stand and ne
stated that he paid all the poll taxes
that the law required in Coosa anu
lee counties Alabama, and that ne
was duly registered in Chiffon
county. Ala.
The bond and petition was pre-
scented to the clerk for MS approval.
Evidence was then shown by
Foshee's attorneys that the pono was
not signed in the presence OF the
clerk and that he had informed the
contestant that he would not accept
The bond unless 1t was acknowledged
to before an officer or signed In MS
presence. r
Dr. N. S. johnson, T. c. McSwain'
DR.. Arthur Johnson, 7. ii. Nelghpors
and John NJ Robinson testified IN
court that they signed the bond Ihe
attorneys for Messer then requested
the clerk to approve the pond anu
petition which he refused 70 no.
Foshee's Argument
FOE1GG leSlillch tieA>
bond was presented to him by Mes
ser's attorneys that he told them ne
would require five of the bondsmeni
to appear before him and state that
they signed the bond or else go pc
fore an officer and acknowiedge
that they signed 1t, and that only
one signer came before him and tnat
he had no certificates which showed
that they had gone before another
officer and acknowledged as TO the
genuineness Of their signatures.
Foshee further testified that prior
to the expiration of the time witnin
which the time the bond could be
approved news came TO him that the
signatures of many of the signers
had been secured through misrep-
resentation. He. introduced in evi-
dence letter from signer OF the
bond which stated that Prof j. T.
Johnson. who asked him to sign it,
told him that it was subscription
list and that he had no knowledge
Of signing bond for contesting the
election.
He also introduced evidence snow
ing that five other signers had asked
that their names be Withdrawn ana
that the bond be not approved with
their names on it.