BEFORE HAWKINS, P.J.; PRATHER AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This election contest turns on questions of timing and procedure. Were the statutorily prescribed procedures for casting absentee ballots complied with? Was judicial review timely sought? And, to what extent is judicial review of an election contest governed by the pleading and practice provisions of the Mississippi Rules of Civil Procedure?
As explained below, this election contest was brought timely - "forthwith" , in the wording of the statute. The rules of civil procedure fill in the gaps left by our statute law but do not operate to thwart today's contest. In the end, thirteen absentee ballots must be thrown out because a statutory procedure designed to assure the integrity of the absentee voting process - that requiring the certificate of an attesting witness - was wholly disregarded.
We affirm the decision of the Special Election Tribunal.
On May 21, 1985, the Democratic Primary Runoff Election was held for the post of Alderman, ward 4, Philadelphia,
Mississippi. The two candidates were Charles Henson and Jimmy Lee Shannon. The Philadelphia Municipal Democratic Executive Committee certified Shannon as the winner by a vote of 291-287. In certifying these results, the Executive Committee counted thirteen (13) absentee ballots, ten (10) for Shannon and three (3) for Henson, and rejected eleven (11) contested ballots. The correctness vel non of the Executive Committee's action regarding the absentee ballots is one of the issues on this appeal.
Aggrieved by this result, Charles Henson contested the election, filing his Notice of Protest with the Municipal Democratic Executive Committee on May 30, 1985. Henson requested a recount of ballots and an opportunity to inspect all ballots. On this same date, Sudie Kay Bassett, chairperson of the Municipal Democratic Executive Committee, notified all parties involved that the requested recount would be held on June 3, 1985. On June 3, 1985, Jimmy Lee Shannon filed his answer to the Notice of Protest previously filed by Henson. Included in this answer was a cross-petition by Shannon alleging that the Executive Committee had improperly counted illegal ballots cast on behalf of Henson and had refused to count legitimate ballots cast on behalf of Shannon. Further, Shannon alleged that the Committee had counted absentee ballots which did not conform to law in favor of Henson. Shannon claimed that all of the illegal ballots should be deducted from the totals in the race.
On that same day, June 3, 1985, the Municipal Executive Committee held the recount as requested by Henson, and also held a hearing on Henson's contest. Neither party was aware that the hearing could be held that day, in addition to the recount. Thus, Shannon's attorney requested a continuance before the Executive Committee proceeded with the hearing. The Committee denied this request and rendered its final decision, reaffirming its May 21, 1985, decision certifying Shannon as the winner.
On June 7, 1985, Henson filed in the Circuit Court of Neshoba County, Mississippi, a Petition for Judicial Review which was set for hearing on August 29, 1985. On the date of this hearing, the Special Tribunal dismissed Henson's Petition without prejudice for failure to comply with Miss. Code Ann. 23-3-45 (1972).
Henson refiled his Petition for Review on September 13, 1985. Again a Special Tribunal was constituted, Hon. Ray H. Montgomery presiding. Miss. Code Ann. 23-3-47 and -71 (1972). On November 18, 1985, Shannon filed his answer to this Petition and a Cross-Petition which included two
allegations in addition to those that were in his Cross-Petition filed with the Executive Committee back on June 3, 1985, supra. In addition to reasserting his original Cross-Petition claim that certain ballots counted were illegal, Shannon introduced in this cross-petition new allegations that Henson induced voters with alcoholic beverages and that the Executive Committee failed to count six legal ballots on his behalf that would have rendered him the winner.
The hearing was held on December 9, 1985, before a Special Tribunal. *fn1 After hearing the testimony and reviewing the evidence, the Tribunal ruled that the thirteen (13) absentee ballots counted by the Municipal Executive Committee as part of the totals were not completed pursuant to Miss. Code Ann. 23-9-413 (Supp.1985) (no certificate of attesting witness) and therefore these ballots should be deducted from the totals. The Tribunal also held that the eleven (11) ballots rejected by the Executive Committee were properly rejected. The Special Tribunal's ruling effectively made Henson the winner by a total of 284-281. Jimmy Lee Shannon thus appeals from this order via a Bill of Exceptions pursuant to Miss. Code Ann. 23-3-51 and -71 (1972).
Shannon's first assignment of error is procedural in nature. He points to the fact that, before the Executive Committee and before the Special Tribunal, he filed a "cross-petition" alleging irregularities in the election which, if credited, would result in Shannon being declared the winner. Henson filed no answer to either cross-petition. Shannon seizes upon this failure on Henson's part and argues here that he was entitled to judgment on his "unanswered" cross-petition.
In support, Shannon argues that Mississippi law requires an answer to a cross-petition in an election contest. He points to the Mississippi Rules of Civil Procedure wherein we find Rule 8(d) providing that
averments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
The question then as whether a responsive pleading was required to the cross-petition. Pule 7(a) provides:
There shall be a complaint and an answer; a reply to a counterclaim denominated as such; . . . .
If the cross-petition we treated as a counterclaim, then it would seem to be a pleading to which a responsive pleading is required under Rule 7(a).
The failure of Henson to answer the cross-petition before the Executive Committee need not detain us. The Mississippi Rules of Civil Procedure apply only to "civil proceedings" had in a court of record. Rules 1 and 81 (a), Miss.R.Civ.P. Proceedings on an election contest before a political party's executive committee are not civil ...