CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 575 (Chk. S. Ct. App. 2007)

[14 FSM Intrm. 575]

OLIMPAS SAMUEL,

Petitioner,

vs.

CHUUK STATE ELECTION COMMISSION,

Respondent,

LEO JOHN,

Real Party in Interest-Respondent.

CIVIL APPEAL NO. 13-2007

ORDER DENYING MOTION TO DISMISS

Hearing: April 9, 2007

Decided: April 9, 2007

Memorandum Entered: April 10, 2007

BEFORE:

Hon. Midasy O. Aisek, Associate Justice, Presiding

Hon. Dennis K. Yamase, Temporary Justice*

Hon. Repeat Samuel, Temporary Justice**

 

*Associate Justice, FSM Supreme Court, Chuuk

**Attorney at Law, Weno, Chuuk

 

APPEARANCES:

For the Petitioner:       Gideon K. Doone

                                    P.O. Box 882

                                    Weno, Chuuk   FM   96942

 

For the Respondent:   Charleston L. Bravo

                                    Assistant Attorney General

                                    Office of the Chuuk Attorney General

                                    P.O. Box 189

                                    Weno, Chuuk FM 96942

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[14 FSM Intrm. 576]

HEADNOTES

Appellate Review ) Notice of Appeal

      The appellate court acquires jurisdiction over a case and the parties thereto, when a notice of appeal has been timely filed and the parties to the case before the inferior tribunal appealed from have been properly served the notice of appeal. No separate summons is required. Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 575, 577 (Chk. S. Ct. App. 2007).

Appellate Review ) Notice of Appeal; Elections

      Since the Civil Procedure Rules generally apply to civil proceedings in the trial division, not the appellate division, it is not necessary to serve a summons when an election contest is appealed to the appellate division and the respondent was properly served the notice of appeal. Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 575, 577 (Chk. S. Ct. App. 2007).

Appellate Review; Civil Procedure

      The civil procedure rules generally do not apply in the appellate division. Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 575, 577 (Chk. S. Ct. App. 2007).

Civil Procedure ) Service

      Failure to make proof of service does not affect the validity of the service. Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 575, 577 (Chk. S. Ct. App. 2007).

Appellate Review ) Dismissal; Elections

      An election contestant, when, if he obtained as relief the nullification of all the votes in a VAAPP box, his vote total would then be higher than anotherís with the result that he would be declared a winning candidate, has stated a claim for which the court can grant relief so his election appeal cannot be dismissed on that ground. Samuel v. Chuuk State Election Commín, 14 FSM Intrm. 575, 577 (Chk. S. Ct. App. 2007).

* * * *

COURTíS OPINION

PER CURIAM:

      On April 9, 2007, this came before the court for hearing on the respondent Chuuk State Election Commissionís Motion to Dismiss, filed April 3, 2007, and petitioner Olimpas Samuelís opposition thereto, filed April 9, 2007. We denied the motion from the bench. This order memorializes our reasons for doing so.

      The respondentís motion to dismiss was essentially based on two grounds: insufficiency of service of process and the petitionerís failure to state a claim upon which he can be granted relief.

     The respondent contended that Samuelís service of process upon it was insufficient and that therefore this court never acquired personal jurisdiction over it, and since it had not the case must then be dismissed without prejudice. The basis for this contention was that service of the papers did not comply with Civil Procedure Rule 4 in that no summons was served with the complaint. The motion also sought dismissal on the ground that real party in interest Leo John had not been served at all. At the start of the hearing it was noted that John had since been served and that that part of the motion was now moot.

[14 FSM Intrm. 577]

     The respondent overlooks the fact that this is a proceeding in the appellate division and that the appellate court acquires jurisdiction over a case and the parties thereto, when a notice of appeal has been timely filed and the parties to the case before the inferior tribunal appealed from have been properly served the notice of appeal. See, e.g., Election Commír v. Petewon, 6 FSM Intrm. 491, 498, 1 CSR 5, 10 (Chk. S. Ct. App. 1994) (properly filed notice of appeal transfers jurisdiction to the appellate court). No separate summons is required. The respondent does not claim it was not properly served Olimpas Samuelís notice of appeal. Furthermore, the Civil Procedure Rules generally apply to civil proceedings in the trial division, not the appellate division. We therefore rejected this ground.

      The respondent also sought dismissal because no proof of service had been filed as required by Civil Procedure Rule 4(f). Again, the civil procedure rules generally do not apply in the appellate division, and, even if they did, Civil Rule 4(f) further provides that "[f]ailure to make proof of service does not affect the validity of the service." Chk. Civ. R. 4(f).

     Secondly, the respondent moved to dismiss on the ground that the petitioner had failed to state a claim upon which relief can be granted and therefore his case should be dismissed under Civil Procedure Rule 12(b)(6). He based this contention on his view that the petitioner never alleged, either before the respondent Election Commission, or in the papers filed with this court, that but for the election irregularities he complains of, the petitioner would be declared elected or tied for election.

      While Samuel may not have used those exact words or language similar to it, we noted that if Samuel obtained the relief he seems to request ) nullification of all the votes in the 5th election district VAAPP box in Honolulu ) his vote total would then be higher than Leo Johnís, with the result that Samuel would be declared a winning candidate. We therefore also rejected this ground for dismissal and set the case for start of trial under Chuuk State Law No. 3-95-26, ß 131.

     Accordingly, we denied the motion to dismiss.

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