{ "id": 8718109, "name": "Thompson v. Self", "name_abbreviation": "Thompson v. Self", "decision_date": "1938-11-21", "docket_number": "4-5363", "first_page": "70", "last_page": "79", "citations": [ { "type": "official", "cite": "197 Ark. 70" }, { "type": "parallel", "cite": "122 S.W.2d 182" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "97 S. W. 2d 434", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411191 ], "opinion_index": 0, "case_paths": [ "/ark/193/0037-01" ] }, { "cite": "267 S. W. 773", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "167 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1377058 ], "opinion_index": 0, "case_paths": [ "/ark/167/0253-01" ] }, { "cite": "251 S. W. 686", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "159 Ark. 199", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720438 ], "opinion_index": 0, "case_paths": [ "/ark/159/0199-01" ] }, { "cite": "206 S. W. 131", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "136 Ark. 217", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1569985 ], "opinion_index": 0, "case_paths": [ "/ark/136/0217-01" ] }, { "cite": "23 Ark. 347", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1866138 ], "opinion_index": 1, "case_paths": [ "/ark/23/0347-01" ] }, { "cite": "23 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1866104 ], "opinion_index": 1, "case_paths": [ "/ark/23/0016-01" ] }, { "cite": "47 S. W. 2d 43", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "185 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435317 ], "opinion_index": 1, "case_paths": [ "/ark/185/0393-01" ] }, { "cite": "34 S. W. 2d 765", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "183 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1441748 ], "opinion_index": 1, "case_paths": [ "/ark/183/0022-01" ] }, { "cite": "196 Ark. 878", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1462410 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/196/0878-01" ] }, { "cite": "245 S. W. 498", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "156 Ark. 216", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358413 ], "opinion_index": 1, "case_paths": [ "/ark/156/0216-01" ] }, { "cite": "14 S. W. 462", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "47 Ark. 49", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888730 ], "opinion_index": 1, "case_paths": [ "/ark/47/0049-01" ] }, { "cite": "261 S. W. 303", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "164 Ark. 126", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1382194 ], "opinion_index": 1, "case_paths": [ "/ark/164/0126-01" ] }, { "cite": "243 S. W. 864", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "155 Ark. 35", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1360540 ], "opinion_index": 1, "case_paths": [ "/ark/155/0035-01" ] }, { "cite": "97 S. W. 2d 434", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "193 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411191 ], "opinion_index": 1, "case_paths": [ "/ark/193/0037-01" ] } ], "analysis": { "cardinality": 792, "char_count": 18998, "ocr_confidence": 0.528, "pagerank": { "raw": 2.8696784498922616e-07, "percentile": 0.842710907083772 }, "sha256": "b19248b657aeedb2fe97ccbdcc0b9f0ce64b16ea7520c9d239bbf370931c6bcf", "simhash": "1:aa3ed6d0bf2d9cb6", "word_count": 3265 }, "last_updated": "2023-07-14T22:44:13.530812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Grieein Smith, C. J.; Smith and Mehaeey, JJ;, dissent." ], "parties": [ "Thompson v. Self." ], "opinions": [ { "text": "DoNham, J.\nAppellant, Cipero.,Thompson, and ap-pellee, G. S. Self, were rival candidates for nomination for fee office of county and probate judge of Greene county in tbe 1938 primary election. According to the certificate of the county democratic central committee, it appears that Self received twenty-seven more votes than Thompson\u2019/\" Thompson instituted a contest by filing a c'omplaint in pursuance of the statute in the Greene circuit court, alleging that many persons were permitted to vote whose names did not appear upon the poll tax list and that many others were permitted to vote who had attained their legal age prior to the election and who were not required to have a poll tax receipt and''that these persons were permitted to vote without giving the necessary information to show, that they were legally entitled to vote without a poll tax receipt. Thompson further alleged that he had reason to believe that he received votes in certain townships which were not counted for him; and that if the illegal votes in said- townships were thrown out, it would result in his- being the -lawful democratic nominee for the office of county and- probate judge.\nIt was necessary that Thompson, in compliance- with the statute, support his complaint by the affidavit of ten qualified electors who were members of the democratic party, and that the complaint, so supported, should be filed within ten days of the certification of which complaint'was made. Section 4738 of Pope\u2019s Digest as amended by act 123, \u00a7 6, Acts of 1935.\nThe filing of the required affidavit within -the ten-day ^period is jurisdictional. If the affidavit is insufficient at the close of the ten-day period, the contestant will not be permitted after the expiration of that time to amend the affidavit so as to confer jurisdiction upon the trial court. Logan v. Russell, 136 Ark. 217, 206 S. W. 131; McLain v. Fish, 159 Ark. 199, 251 S. W. 686; Culpepper v. Mathews, 167 Ark. 253, 267 S. W. 773.\nThe right to question the sufficiency of the affidavit, although it may appear sufficient on its face, is given the contestee under the law governing primary elections. Kirk v. Hartlieb, 193 Ark. 37, 97 S. W. 2d 434.\nThe supporting affidavit attached to the complaint of appellant bears the names of eleven persons. At the beginning of the trial, appellant conceded that one of these was not a qualified elector and agreed that his name might be stricken from the affidavit. This was don\u00e9 and only ten names were left. The record shows that one of the affiants, \"Wilder Carpenter, did not .believe that he was under oath at the time he signed th\u00e9 'affidavit. He testified, that there was nothing in Iris signing to lead him to believe that he was under oath. Another, C. E. Tenni-son, testified that he did not even know that the party before whom the affidavit was signed was a notary public until after he had signed the affidavit and left her office. Three others testified that they were called over the telephone by the notary public and asked if they had signed the affidavit. Two of them admitted that they had signed it and the third stated that he had not signed the affidavit, but that his son had signed it for him. It seems that-all the notary would ask those whose names appeared as affiants was whether they had signed the affidavit and would swear to their signature.\nIn 1 R. C. L., p. 765, we find the following: \u201cTo make a valid oath or affirmation there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and an intention to administer it on the other; for, even though such intention actually did exist, if it was not-manifested by an unambiguous act, perjury could not be based thereon. If the attention of the person making the affidavit is called to the fact that it must be sworn to, and, in recognition of this, he is asked to do some corporal act, and he does it, the instrument, constitutes a statement under oath, irrespective of any other formalities.\u201d\nIn American Jurisprudence, Yol. 1, 2, 13,14, title, affidavits, the following statements appear: \u201cAn affidavit is any voluntary ex parte statement reduced to writing and sworn to or affirmed before some person legally authorized to administer an oath or affirmation. It is made without notice to the adverse party and without opportunity to cross-examine. . . . Under the definitions of an affidavit given above, it is essential to the validity of an affidavit that it be sworn to, or affirmed before, some officer authorized to administer oaths or affirmations. There must be something which amounts to the administration of an oath or affirmation; this requires concurrent action on the part of the affiant and an authorized officer. . . . The chief essentials of an affidavit are that it be in writing, and that it be sworn to, or affirmed before, some legally authorized officer.\u201d\nIn American Jurisprudence, Yol. 1, p. 943, \u00a7 13, we find the following statement of the law: \u201cIn making an affidavit, the law requires that the affiant and the paper sworn to he in the personal presence of the officer administering the oath. Accordingly, the oath of the affiant cannot he taken over the telephone.\u201d\nIn the recent case of Kirk v. Hartlieb, supra, this court quoted with approval the foregoing quotations taken from \u00a7\u00a7 2,13,14 of the chapter on affidavits appearing in Vol. 1 of American Jurisprudence, and there specifically held that where signatures were obtained as they usually are in ordinary petitions and then carried to an officer authorized to administer oaths who signs his name to the jurat, such purported affidavit, in an election contest, is insufficient.\nThe trial court held that the supporting affidavit attached to appellant\u2019s petition was insufficient and sustained appellee\u2019s motion to .dismiss the complaint. We agree that the trial court was correct in so holding. No error appearing, the judgment is affirmed.\nGrieein Smith, C. J.; Smith and Mehaeey, JJ;, dissent.", "type": "majority", "author": "DoNham, J." }, { "text": "Smith, J.\n(dissenting). The \u201cMotion to Dismiss and Strike Out Plaintiff\u2019s Complaint\u201d reads as follows: \u201cComes the defendant, G. S. Self, and moves the court to dismiss and strike out the complaint of the plaintiff herein and for ground thereof states that said complaint is not supported by an affidavit of at least ten reputable citizens of Greene county, Arkansas, as by law required, and that no ten signers thereof have the requisite qualifications to make the same. Wherefore, defendant moves the court to dismiss and strike out plaintiff\u2019s complaint and for all other further relief.\u201d\nThe original primary election law required that \u201cThe complaint shall be supported by the affidavit of at least ten reputable citizens\u201d (\u00a7 3772, Crawford & Moses\u2019 Digest), and several of our cases defined who \u201creputable citizens\u201d were within the meaning of the statute. See, Bowers v. State, 155 Ark. 35, 243 S. W. 864, and cases there cited.\nThis section, 3772, Crawford & Moses\u2019 Digest, was amended'by \u00a7 6 of act 123 of the Acts of 1935, p. 339. This amendatory section reads as follows: \u201cHereafter, when any -election contest has -been filed by any candidate in any legalized primary election under \u00a7\u00a7 3772 and 3773 of Crawford & Moses\u2019 Digest of the Statutes of Arkan-.-sas, it is hereby declared that the only inquiry which can be made into the.qualifications of the supporting affiants mentioned in U 3772 of said Digest must be confined to the question as to whether or not th\u00e9 said persons are qualified electors and -members of the party holding said primary election under the rules prescribed by said party , so holding- the election and have in fact made the affidavit provided by the said \u25a0 \u00a7 3772. Qualified elector is hereby construed to mean any person who is entitled to vote in said election or has assessed and paid a poll tax as required by law. \u2019 \u2019 Under, this section the only qualifications imposed upon affiants are that they be qualified electors\u2019 and are members of the party holding the primary election sought to be contested. They must,. of course, make the affidavit. Th\u00e9 motion to dismiss does not raise the question that the affidavits were not made. The objection is that \u201c. . . no ten signers thereof have the requisite qualifications to make the same.\u201d There were eleven affiants, and it is conceded that one of these did not possess the requisite qualifications. Ten remained, and no attempt was made to show that any of these ten were not qualified electors and members of the party holding the said primary election. There was, therefore, no testimony to support the objection made to the supporting affidavit, and the motion to dismiss should have been overruled for that reason.\nIt is insisted, however, that several \u2014 probably as many as five \u2014 of the alleged affiants did not in fact \u201cmake the affidavit.\u201d As we have shown, no such question was raised in the motion to dismiss, but, even so, the testimony is not sufficient, in our opinion, to sustain that contention.\n'Both parties cite, rely upon, and quote from the case of Cox v. State, 164 Ark. 126, 261 S. W. 303. The quotation from that opinion appearing in both briefs' reads as \u2022 follows: \u201cSo here we think if appellant signed-the affidavit for the purpose of swearing to it, knowing, that the clerk regarded his act of. signing the affidavit as a method of making affirmation* the jury .was warranted in finding that appellant was sworn. Fortenheim v. Claflin, Allen & Co., 47 Ark. 49, 14 S. W. 462.\n\u201cAt \u00a7 8 of the chapter on Affidavits, in 1 B. C,- L., p. 765, it is said: \u2018To make a valid oath or affirmation there must be some overt act which shows that ther,\u00a9 was an intention to take .an.,:path ; or-affirmation on dhe one hand and an intention to administer it on the otfier; for, even though such intention.actually did exist, if it was not manifested by an unambiguous act,- per jury could not be has\u00e9d thereon. If the attention of the person-making the affidavit is called to the fact that it must-be sworn to, and, in recognition of this, he is asked to do' some corporal act, and he.does it, the instrument constitutes a statement under oath, irrespective of any other formalities.\u2019 -See, also, \u00a7 48 of the chapter on affidavits, in 2 C. J. 337, the notes to the texts cited. \u201d\n^ This Cox Case, from which we have just quoted, was an appeal from a judgment sentencing Cox to a term in the penitentiary under an indictment charging him with the crime of perjury, and the question upon which the decision turned was whether -Cox had made an affidavit upon which to obtain a license to marry a girl under the age of fifteen years. The facts, as there stated, were that the clerk \u201cthen tendered to appellant (Cox) .for his signature an affidavit which recited the girl\u2019s age to be eighteen. Appellant signed the affidavit and the license was issued, although appellant was not otherwise sworn.\u201d Upon these facts we held that an affidavit had been made and affirmed the conviction of Cox for perjury, committed by making a false affidavit.\nThere is no question here as to the sufficiency in 'form of the .affidavit, nor is there any question that the officer attaching her jurat had that authority. It., was held in the case of Lanier v. Norfleet, 156 Ark. 216, 245 S. W. 498, that the supporting affidavit required by .the primary election law maybe made before a. duly qualified notary public. . . ,;\nExcept as to Ed Grill there is no question but that all the affiants signed the affidavit. Grill, when asked, \u201cIs this your signature?\u201d answered, \u201cThat is Charlie\u2019s, my son, but I authorized him to sign it.\u201d\nIn the very recent case of Harris v. Hall, Secretary of State, 196 Ark. 878, 120 S. W. 2d 335, we had occasion to consider when one may adopt as his own a signature written by another at the request of the person whose name was signed. That opinion recognized as valid such signatures, although the adopted signatures in that case were held invalid for the reason that under the provisions of the I. & R. Amendment, there invoked, there was a statutory inhibition against a person signing any name other than his own to an initiative petition. Our attention has not been called to any inhibition applicable to affidavits such as the one here under review, nor are we aware of any such statute which would prevent one from adopting such a signature as his own. It is our opinion that Ed Gill \u201csigned\u201d the affidavit.\nIt appears that three of the affiants did not personally appear before the notary, but were sworn over the telephone. It is insisted, and the court below held, that those persons were not sworn, for the reason that they did not personally appear before the notary. We think this was error.\nThere appears at page 3626, Pope\u2019s Digest, a form for an acknowledgment of a deed by one grantor, which has appeared in all the digests of the statutes, and which is in universal use throughout the state. Section 1830, Pope\u2019s Digest, is given as authority for the use and sufficiency of the form of knowledgment there appearing. This recites that the grantor \u201cappeared in person.\u201d Section 1830, Pope\u2019s Digest, provides that \u201cThe acknowledgment . . . shall be by the grantor appearing in person before such court or officer having the authority by law to take such acknowledgment, . . Notwithstanding this statute, we have held that an acknowledgment, even by a married woman, of a conveyance of her homestead, over the telephone, was a good acknowledgment. Abernathy v. Harris, 183 Ark. 22, 34 S. W. 2d 765; Jolley v. Meek, 185 Ark. 393, 47 S. W. 2d 43. In the case last cited a number of cases were cited to the effect that the acknowledgment of a signature as one\u2019s own was effective even though the signature had not been previously authorized. The theory being that the telephone conversation was a personal appearance.\nIn the case of Kirk v. Hartlieb, 193 Ark. 37, 97 S. W. 2d 434, cited and relied upon by appellee the facts were, as there stated, \u201cthat the signatures were obtained just as they usually are to ordinary petitions, and often when twelve or fourteen signatures had been thus obtained the paper was carried to the circuit clerk, who signed his name to the jurat. None of the alleged affiants appeared before him.\u201d There was, of course, no appearance before the clerk whatever in that case.\nThe most equivocal testimony in the case was given by Wilder Carpenter, who admitted signing the affidavit in the presence of a notary public, but denied that he had been sworn. He testified, \u201cNow, listen, I don\u2019t know what I done.\u201d When asked if, at the time he was signing, he thought he was under oath, he answered, \u201cNo, I didn\u2019t. I just didn\u2019t think nothing about it, paid no attention to it any more, I just signed it, because Cicero (the contestant) said \u2014 I just signed it.\u201d When asked if the stenographer, who was the notary public, swore him he replied, \u201cI don\u2019t think she did.\u201d When asked, \u201cYou went with him (contestant) for the purpose of signing this affidavit,\u201d he answered, \u201cYes, sir, I signed it. I would have signed if she had swore me as quick as the other way.\u201d The court asked witness: \u201cYou didn\u2019t think you were under oath at that time.\u201d The witness answered, \u201cNo, when Mr. Kirsch came up there and asked me, did I swear to it, I said, No, I thought, when you swore to anything, you held up your hand and swore like you swear here in court. I paid no attention to it. \u2019 \u2019 These questions and answers make apparent the fact that the witness did not think he had been sworn because his hand had not been uplifted. This was not essential, as was decided in the Cox Case, supra.\nThe testimony of the affiant, C. E. Tenison, was less equivocal. He testified: \u201cI signed before Mr. Bratton\u2019s stenographer (the notary), but so far as holding up my right hand and being sworn I didn\u2019t know.\u201d Tenison further, testified: \u201cAfter I came down (from Bratton\u2019s office) I asked them, was that a notary public. She asked me did I thoroughly understand the affidavit. I told her I did.\u201d And when asked, \u201cWere you intending to swear to that at the time you signed if?\u201d he answered, \u201cYes, sir.\u201d Witness- had previously read the affidavit, and when asked, \u201cYou thought-at the time you were signing it it was an'affidavit?\u201d and he answered: \u201cI suppose the affidavit would be sworn to, yes, sir. \u2019 \u2019 And when the witness was further asked, \u201cWho was it told you it was an affidavit? Where does it say affidavit on it \u2014 that is, if it was an affidavit?\u201d he answered, \u201cMr. Thompson (.contestant) told me he was getting an affidavit.\u201d\nWe are of the opinion, therefore, that all five of the affiants whose-affidavits-are questioned had \u201cmade affidavit\u201d in' a manner sufficient to comply with the requirements of the law.\n. It must be remembered that a contest will not be entertained unless the -complaint shall be supported, by an affidavit filed within ten days of the certification of the .result of. the election, and we have several times held that this requirement is jurisdictional, and the contest will not be entertained unless the affidavit is made within the time limited. It cannot be made thereafter. It would appear, therefore, that the door for fraud and imposition might be opened wide if persons who apparently had made affidavit,- upon -which the contest might be based could, after the time when other affidavits could be procured, be permitted to say that they had signed the affidavit, but had done so with mental reservations and did.not- consider that they had been sworn because the oath had not been administered in the manner which they thought the law required.\nThere appear no formalities required in making affidavits except that \u00a7 5215,. Pope\u2019s Digest, is as follows: \u201cEvery affidavit shall be subscribed by the affiant, and the certificate of the officer before whom it is made shall be. written separately, following the signature of the affiant. Civil Code, \u00a7 605.\u201d The affidavit here found defective fui.lv complies with this statute. Following, this section the digester has the following annotation: \u2018 The requirement that the affidavit shall be subscribed by the affiant is merely directory. Gill v. Ward, 23 Ark. 16; Mahan v. Owen, 23 Ark. 347.\u201d\nThere is no intimation of fraud in this case, but if these affiants may defeat this contest upon the testimony offered, the perpetration of fraud in some other case may be easily accomplished. The partisans of a successful candidate, knowing that a contest is about to be instituted, could make the essential affidavit, and then, when it was too late to secure other signatures, show the reservations entertained by them, when they had made the affidavit, and thus defeat the contest.\nFor the reasons stated the writer, the Chief Justice, and Mr. Justice Mehaffy dissent from the opinion of the majority holding that a proper affidavit had not been made.", "type": "dissent", "author": "Smith, J." } ], "attorneys": [ "Jeff Bratton, for appellant.", "Kirsch & Cathey, for appellee." ], "corrections": "", "head_matter": "Thompson v. Self.\n4-5363\n122 S. W. 2d 182.\nOpinion delivered November 21, 1938.\nJeff Bratton, for appellant.\nKirsch & Cathey, for appellee." }, "file_name": "0070-01", "first_page_order": 86, "last_page_order": 95 }