
    Flanary v. Charles.
    (Decided September 27, 1921.)
    Appeal from Pike Circuit Court.
    JOHN D. CARROLL, HAZELRIGG & HAZELRIGG and E. D. STEPHENSON for appellant.
    J. J. MOORE and WILLIS STATON for appellee.
   Opinion op the Court by

Judge Quin

— Eeversing.

This case is controlled by that of Damron v. Johnson, this day decided. (Page 350 ante.)

This is a contest for the Republican nomination for judge of the Pike county court. At the primary held August 6, 1921, according to the face of the returns certified by the election commissioners, appellant and contestant received 2,920 votes; appellee 3,280 votes and a third candidate 981 votes. The lower court sustained a motion to quash the sheriff’s return on the notice of contest on the ground that it was served more than five days after the county board of election commissioners canvassed and tabulated the vote. The petition and notice of contest were dismissed and appellee Charles declared the nominee for the office aforesaid. Complaining of this judgment contestant appeals.

The facts in the case of Damron v. Johnson, this day decided and which involve the Republican nomination for sheriff of Pike county, are practically identical with those found in the instant record; both grew out of the same primary election. The points discussed in that opinion as to whether Sunday should be excluded in the computation of time for the service of notice and of contestant’s 'failure to offer any evidence are the same as raised on the present record. The reasoning of the opinion in the case supra is controlling here. The judgment is accordingly reversed and the cause remanded for further proceedings. The mandate to issue immediately

The whole court except Judge Sampson sitting.  