Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge; affirmed.

Sam Dent Bell, for appellant.

1. No warning order was issued, nor personal service had. The record fails to show that any legal proof of publication was made of any warning order. The court acquired no jurisdiction and the circuit court had none on appeal. 87 Ark. 313; 40 Id. 124; 50 Id. 433.

2. The defendant only appeared specially to take an appeal and waived no errors as to jurisdiction. 77 Ark. 412.

3. The letter admitted was irrelevant and incompetent as evidence and outside this letter there is no evidence to sustain the verdict.

Park Crutcher, for appellee.

1. Appellant entered his appearance in justice's court and prayed an appeal, thus waiving service. 19 Ark. 484; 43 Id. 545; 53 Id. 181; 45 Id. 295; 46 Id. 251.

2. The court sitting as a jury settled the fact of appellee's indebtedness. 25 Ark. 474; 23 Id. 131; 40 Id. 168. This court will not disturb a verdict or finding of a court, if supported by any legal evidence. Cases supra.

MCCULLOCH, C. J. The defendant (appellant) is a foreign corporation and the plaintiff instituted this action against it before a justice of the peace in Crawford County, Arkansas, to recover the amount of an alleged debt for commissions on the sale of pumps which were manufactured and placed on sale by the defendant. An order of general attachment was issued at the commencement of the action and levied on certain personal property of the defendant found in Crawford County, and a warning order was published. Judgment by default was rendered and the property was ordered to be sold to satisfy the judgment. The defendant appeared later by attorney and took an appeal to the circuit court. A trial in the circuit court resulted in a verdict in favor of the plaintiff and an appeal has been prosecuted to this court.

(1) Defendant filed a motion for a continuance, and the action of the court in overruling the motion is urged here as one of the grounds for reversal; but as the motion does not appear in the bill of exceptions, that ruling of the court is not subject to review.

(2-3) The principal ground urged for reversal is that the record fails to show that there was an affidavit for warning order, but the appearance of the defendant waived that defect in the proceeding and it is too late now to complain that the warning order was issued without an affidavit having been filed. Taking an appeal to the circuit court, and the prosecution of the appeal in that court, operated as a general appearance, and such an appearance waived the want of process or any defect. therein.

The case was heard by the court sitting as a jury, and the only testimony adduced was that of the plaintiff himself. He testified that he commenced selling pumps for the defendant pursuant to an agreement with one Trusty, of Fort Smith, who claimed to be the general agent or State agent of the defendant. His testimony further shows that he sold a certain number of pumps. which would entitle him to the amount of commission he recovered under the court's judgment.

(4-5) In course of the examination of the plaintiff, a letter was introduced in evidence, directed to him and purporting to be signed by the defendant. This letter is sufficient to establish a contract of the defendant with the plaintiff whereby the latter was to sell pumps in this State for a stipulated commission. There was a general objection to the introduction of the letter on the ground that it was "irrelevant, incompetent and immaterial and injurious to the rights of the defendant herein." The objection made here is that the letter was introduced without sufficient proof of its execution, but we are of the opinion that that objection comes too late. A general objection to the admission of evidence reaches only to its relevancy and competency, and not to the sufficiency of the foundation laid for its introduction. Vaughan v.

State, 58 Ark. 353; Railway Company v. Murphy, 60 Ark. 333; Railway Company v. Sweet, 60 Ark. 550. The specific objection made here should have been made to the court below in order for it to avail anything. If the objection had been made there, the plaintiff would have had an opportunity to lay the proper foundation by first proving the execution of the letter. There is no hint in the record that any question was made as to the authenticity of the letter. Therefore it would operate unjustly to the prejudice of plaintiff to permit that objection to be made now for the first time.

Judgment affirmed.

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BOWDEN v. WEBB.

Opinion delivered January 11, 1915.

ELECTION-CONTEST-ORDER

OF

CIRCUIT JUDGE-FINALITY-REVIEW

CERTIORARI.—On an appeal to the circuit court from the county court, in a cause contesting the validity of an election concerning the removal of a county seat, the circuit judge in vacation made an order requiring certain election commissioners to appear before the clerk, and to file the election books containing the names of those who voted at the election, and requiring that said books be kept by the clerk. Held, the order of the circuit judge was final and subject to review, and there being no provision for an appeal from an order of a circuit judge in vacation, a writ of certiorari is the appropriate method of bringing up the record for review. ELECTIONS-COUNTY SEATS-RETURNS, HOW MADE.-Returns of county seat elections are to be made to the county election commissioners, the same as required by the statute in general elections and a contest of such an election must originate in the county court. ELECTIONS-POLL BOOKS-CONTEST-JURISDICTION OF CIRCUIT JUDGE.— Where the result of an election is contested, the circuit judge in vacation, when the contest is pending in the circuit court, on appeal from the county court, may require the election commissioners to discharge their duty by allowing a reasonable opportunity to contestants and those interested in the result of the election, to inspect the poll books.

ELECTIONS-POLL BOOKS-INSPECTION.-The original, as well as the duplicate poll books, made at an election, are public records, in the sense that they must be kept open for the inspection of those who are interested in them and have a right to see them.

5.

MANDAMUS-PUBLIC OFFICER-REMEDY.-Mandamus is an appropriate remedy for requiring a public officer to discharge his duty.

6. ELECTIONS-CONTEST-INSPECTION OF RECORDS.-In a contest over a county seat election, where fraud in the election is alleged by contestants, an inspection of the records is indispensable, for the records are presumed to be correct until overturned by evidence showing that they are not correct.

8.

7. CIRCUIT JUDGES-POWERS IN VACATION.-Circuit judges in vacation, may exercise only such judicial powers as are conferred by statute. ELECTIONS CONTEST-INSPECTION AND CUSTODY OF RECORDS-POWER OF CIRCUIT COURT.—While, in an election contest, the circuit judge may order the production of the poll books to be used as evidence, the circuit judge in vacation has no power to order the relinquishment of the custody of the same by the election commissioners.

Certiorari to Hempstead Circuit Court; R. G. Haynie, Judge; judgment quashed.

Jas. H. McCollum, T. C. Jobe and O. A. Graves, for petitioners.

1. The circuit judge had no power or authority to make the order. Kirby's Dig., §§ 2832-3; 163 S. W. 1173; New Standard Dictionary, p. 2559. "Competent Tribunal" means a court of justice. 2 Words & Phrases, 1362; 2 Ark. 229; 30 Id. 764; 38 Id. 213; 86 Id. 259; 103 Id. 571; 23 Cyc. 543-5; 26 U. S. (L. Ed.) 1111; 2 Words & Phrases, 1678; 23 Cyc. 543.

2. Neither judge nor court has the power to order the issuance of a subpoena duces tecum for the production of the books for inspection. Kirby's Digest, $ 2838; 75 Ark. 455; 32 Id. 553; 49 Am. St. 557; 16 L. R. A. (N. S.) 1062; 40 Cyc. 2168; 128 Am. St. 749; 40 Cyc. 2170; 6 L. R. A. (N. S.) 325, note; 12 Id. 636; 31 L. R. A. (N. S.) 835; 15 Cyc. 429.

3. Should the order be carried out the integrity of the poll books would be destroyed and they would be useless as evidence. 50 Ark. 85; 11 Am. St. 787; 49 Id. 557; 16 L. R. A. (N. S.) 1062; McCrary on Elections, § § 4714, 480-1.

4. Before a subpoena duces tecum will be ordered for books, it must appear that they contain material evidence. 66 Ark. 229; 37 Am. Rep. 426; 128 Am.

St. 749, note; 41 U. S. (L. Ed.) 87; 40 Cyc. 2169; 31 L. R. A. (N. S.) 835. As to whether or not the writ is really a subpoena d. t. see 16 L. R. A. (N. S.) 1062.

5. Certiorari is the proper remedy. 29 Ark. 173; 38 Id. 159; 39 Id. 126; Ib. 347; 61 Id. 605; 69 Id. 587; 73 Id. 604; 80 Id. 200; 103 Id. 571; 109 Id. 100; 50 L. R. A. 787; 7 Id. (N. S.) 512.

Etter & Monroe, Dan W. Jones and D. B. Sain, for respondents.

1. This application was made to the circuit judge in vacation under Kirby's Dig., §§ 3074 to 3078. The circuit judge in vacation has power to make the order. Kirby's Dig., § § 2883, 3074 to 3078. The provisions of these statutes were fully complied with. See Kirby's Dig., § 1125, and 73 Ark. 270; Kirby's Dig. § 2838. The only competent evidence are the ballots and certificate showing how each elector voted. The production of the poll books does not interfere with the secrecy of the ballot or certificates.

2. The books, when produced, are under the control of the court, and the control of the election commissioners ceases. 75 Ark. 452.

3. The circuit court had jurisdiction over the contest by appeal, and had authority to make any necessary order for preserving the ballots and using them as evidence. 86 Ark. 272; Kirby's Dig., § 2838; 81 Ark. 543.

4. Nothing in section 2838, Kirby's Digest, is mentioned with reference to poll books, but only the ballots and certificates. There is no statute requiring poll books to be kept secret.

5. The petition for subpoena d. t. is specific as to the particular books desired.

MCCULLOCH, C. J. An election was held in Hempstead County on August 15, 1914, to decide the question of removal of the county seat from Washington to Hope; and the majority being, on the face of the returns as certified by the election commissioners, in favor of removal, a contest was instituted by those opposed to such re