Editor's notes.

- In light of the similarity of the provisions, decisions under former § 21-3-425 are included in the annotations for this Code section.

Time for hearing

- The requirement that the judge must set a hearing date "within 20 days after the return day" provides a deadline by which a date must be set. Head v. Williams, 269 Ga. 894, 506 S.E.2d 863 (1998) (decided under former § 21-3-425).

The trial court did not violate the statute by setting a hearing date on the same day as the return day fixed in the notice to the defendants where from the time the petitioner filed the petitioner's petition, the petitioner knew that the petitioner had the burden of presenting evidence to support the petitioner's allegations of illegal voting and tampering with absentee ballots and where the petitioner had six days' notice that a hearing date was being set and three days' notice of the actual date of the hearing. Head v. Williams, 269 Ga. 894, 506 S.E.2d 863 (1998) (decided under former § 21-3-425).

When court required to inspect vote recorder ballots.

- In the absence of any statutory authority authorizing a hand count and determination by election officials of voter intent with regard to nondefective ballots voted by means of vote recorders, and in the absence of allegations or proof of fraud, misconduct by election officials, improper functioning of vote recorders or tabulating machines, a court, in an election contest, is not bound under this section to require the inspection or hand count of nondefective ballots voted by means of vote recorders. Rary v. Guess, 129 Ga. App. 102, 198 S.E.2d 879 (1973) (see O.C.G.A. § 21-2-525).

Judge's function under this section (see O.C.G.A. § 21-2-525) is not judicial. Carter v. James, 96 Ga. 280, 23 S.E. 201 (1895) (see O.C.G.A. § 21-2-525).

Where evidence of defendant's liability conflicting, court may hold hearing on costs.

- Where the presiding judicial officer hearing a contested election case under this section issued a fi. fa. for costs and the evidence of the defendant's liability was conflicting, the judge of the superior court did not abuse judicial discretion in issuing, upon petition, a restraining order against execution of the fi. fa. until a hearing could be held on the issues raised by the pleadings. McLeod v. Reid, 120 Ga. 785, 48 S.E. 315 (1904) (see O.C.G.A. § 21-2-525).

Decision of the ordinary (now probate judge) in a contested "fence or no fence" election is final. Skrine v. Jackson, 73 Ga. 377 (1884).

Burden of showing election returns inaccurate is upon the intervenor. Brown v. City of Atlanta, 152 Ga. 283, 109 S.E. 666 (1921).

Decision of superior court judge final.

- Where the election of a county officer was contested, and the evidence which was taken before a justice of the peace of the county, together with all the papers filed in the contest, was duly transmitted to the judge of the superior court of the circuit in which the contest arose, the decision by the latter therein is final, and the writ of certiorari will not lie to review the contest. Robertson v. Easley, 20 Ga. App. 258, 92 S.E. 1027, cert. denied, 20 Ga. App. 832 (1917) .

Ordinary's decision in municipal election contest is final.

- Where an ordinary renders a decision in a contest over a municipal election, the ordinary does not act in a judicial capacity, thus a writ of certiorari to the superior court to review the contest does not lie. Harris v. Glenn, 141 Ga. 687, 81 S.E. 1103 (1914).

Cited in Hollifield v. Vickers, 118 Ga. App. 229, 162 S.E.2d 905 (1968); Henderson v. County Bd. of Registration & Elections, 126 Ga. App. 280, 190 S.E.2d 633 (1972).

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 415 et seq., 428 et seq.

C.J.S.

- 29 C.J.S., Elections, § 509 et seq.