The opinion
O’NIELL, Chief Justice
(dissenting).
Section 11 of Act No. 97 of 1922, as amended by Act No. 110 of 1934, pp. 428, 429 (section 1), provides that, in a suit of this character, the jurisdiction of the court, the time of filing the petition and answer, the procedure and appeal shall, “in all things and as far as applicable be as provided for contested election cases under Section 27 of this act, except that the executive committee whose ruling is complained of shall be made party defendant,” etc. Section 27 of the act, as amended by Act No. 28 of the Second Extraordinary Session of 1935 (section 1), referring to contested election cases, declares that:
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“No contest shall be entertained unless brought within two days after the official promulgation of the result of the election, made by the Secretary of State, as provided herein.” The defendants in the present cases pleaded that these suits were not brought within the two days prescribed by the statute. There is nothing in the statute prescribing the method of promulgation of the findings or rulings of the committee in the matter of a contest of the qualifications of a candidate for the party nomination. Hence there is some doubt as to how the promulgation shall be made, and as to when the two days (within which a suit may be brought) shall begin. In these cases, it was agreed between the contestees, on the one hand, and the executive committee, on the other hand, that notice of the rulings of the committee should be served upon Louis Gagneris, Jr., at his residence, at Arabi, in the parish of St. Bernard. It was agreed, as I understand, that the serving of the notice upon Mr. Bagneris, as the representative of the contestees, should constitute, or take the place of, a promulgation of the findings or rulings of the committee, and that Mr. Bagneris should remain at his place of residence to receive the notice. The committee came to its conclusions and adjourned at 4:45 p.m. on the 28th day of October, 1935. At about 5:15 that evening a deputy sheriff was sent to the residence of Louis Bagneris, Jr., to serve the notice. Mr. Bagneris was not at home, and his father informed the deputy sheriff that Bagneris, Jr., had gone across the lake, and that he (the father) did not know when his son would return. Having made several calls at the Bagneris residence, in an effort to serve the notice, the deputy sheriff reported to the chief deputy that he was unable to serve the notice upon Louis Bagneris, Jr. At 11 o’clock that night, the chief deputy telephoned to the attorney for the contestees, at his residence, in New Orleans, that Bagneris, Jr., could not be found; and, in the telephone conversation, it was agreed that the notice should be served upon the attorney, at his office, in New Orleans, after 9 o’clock on the next morning, the 29th of October, 1935. Accordingly, the notice was served upon the attorney by a deputy sheriff, and- .the attorney wrote and signed an acceptance of service on the notice at 10:15 a.m. on the 29th of October, 1935. The suits were filed at 9:15 a.m. on the 31st day of October, 1935; which was within two days from the time of service of the notice upon the attorney for the contestees.
Considering that there was no “official promulgation” of the findings or rulings of the committee, my opinion is that the filing of the suit two days from the service of the notice upon the attorneys for the contestees was sufficient compliance with the requirements of section 27 of Act No. 97- of 1922, as amended by Act No. 110 of 1934 (section 1), “as far as applicable.” The agreement that the two days should commence from service upon a designated representative of the contestees was not contrary to law; and, when the representative thus designated could not be found, service of the notice upon the attorney for the contestees should have been deemed a compliance with the agreement
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to serve the notice upon their representative.
The deputy sheriff who telephoned to the attorney at 11 o’clock on the night of the 28th of October testified that he then informed the attorney, in the telephone conversation, of the findings or rulings of the committee. The attorney did not testify in the case. I take it, therefore, that the deputy sheriff did inform the attorney of the findings or the rulings of the committee, in the telephone conversation; but I do not consider that the giving of the information to the attorney, in that informal way, and at that hour of the night, should be deemed to be, or should take the place of, an “official promulgation.”
I consider that the formal notice upon the attorney, at his office, the next morning, took the place of an “official promulgation,” because it was agreed that such a service of notice upon a representative of the contestee should be deemed sufficient ; and, when it was not possible to serve the notice upon the designated representative, the service upon the attorney for the contestees was the next best method of complying with the agreement.
My opinion, therefore, is that the judge of the district court erred in sustaining the plea of prescription of two days. This is the only ground on which the judge dismissed these suits. I agree with him that the plea to the jurisdiction ratione materia; was not well founded. The exception of misjoinder of parties defendant, and the exception of no cause of action, also, were, in my opinion, not well founded. On the trial of the case on its merits, the contestees, or plaintiffs in the suit, made out their case.
For these reasons I am of the opinion that the judgments appealed from should be reversed.