91 S.W. 905 (Mo. 1906), The State ex rel. Wells v. Hough

Citation:91 S.W. 905, 193 Mo. 615
Opinion Judge:GANTT, J. --
Party Name:THE STATE ex rel. WELLS v. HOUGH, Judge, et al
Attorney:James Hagerman, J. W. Jamison and Lee W. Hagerman for relator. Selden P. Spencer, William Dee Becker, John S. Leahy, Edward D'Arcy and Walter J. G. Neun for respondents.
Judge Panel:GANTT, J. Brace, C. J., Marshall, Burgess, Fox & Lamm, JJ., concur; Valliant, J., not sitting.
Case Date:February 26, 1906
Court:Supreme Court of Missouri

Page 905

91 S.W. 905 (Mo. 1906)

193 Mo. 615

THE STATE ex rel. WELLS

v.

HOUGH, Judge, et al

Supreme Court of Missouri

February 26, 1906

Preliminary rule quashed.

James Hagerman, J. W. Jamison and Lee W. Hagerman for relator.

(1) The contestant's notice was not sufficient to give the court jurisdiction over the person of the contestee. (2) An election contest is a "case" in court under the Constitution and statutes of Missouri. Secs. 2 and 9, art. 8, Constitution; sec. 7029, R. S. 1899. A "case" is a "suit" or "action" or "cause." They are synonymous. Ex parte Millegan, 4 Wall. (U.S.) 112; 5 Am. and Eng. Ency. Law (2 Ed.), title "cause;" Magill v. Parsons, 4 Conn. 322; Kendall v. U.S., 12 Peters 624; Susquehanna Co's. Appeal, 105 Pa. 615; Drake v. Gillman, 2 N.Y. 391; Taafe v. Ryan, 25 Mo.App. 563; State ex rel. v. John, 81 Mo. 13; State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Board of Public Schools, 112 Mo. 213; State ex rel. v. Slover, 134 Mo. 18. (3) A "case," "suit" or "action" cannot be brought or maintained in a court of record unless the petition or its equivalent is filed. This is elemental. There is no exception. 8 Ency. Pl. and Pr., 629; 21 Id., 679; Lumber Co. v. Wright, 114 Mo. 331; 1 Cyc. Law and Proc., 747; Martin on Civ. Proc. pp. 10, 11; Bouvier's Law Dic., p. 362; Andrew's Steph. Pl., ch. 3. (4) Section 7029 is silent as to the filing of the notice, but the filing of the notice to serve as a petition being absolutely essential to the commencement of the suit, it necessarily follows that, under the analogies if not the express directions of the Missouri statutes, the notice to serve as a petition must be first filed, and if it can also serve the purpose of summons, must be served as such after filing. Mills v. State, 10 Ind. 114; Hirst v. Cone, 12 Ind. 257; Beagon v. State, 108 Ind. 155; Lowry v. Richmond, 83 Ga. 504; Bailey v. Palmer, 5 Ark. 208; Roth v. Wade, 2 Hill 385; Brackett v. Simons, 1 N.Y.S. Ct. 86; U.S. v. Eddy, 28 F. 226; Robinson v. Orr, 16 Ohio St. 284; Bowen v. Bowen, 36 Ohio St. 312; Seibert v. Switzer, 35 Ohio St. 661; Ellis v. Fletcher, 40 Mich. 321; Limbird v. Book, 30 Mo.App. 47; secs. 566, 638, R. S. 1899. (5) The notice having expressly stated that it would be filed with the clerk for the purpose of contesting the election, clearly meaning to serve as the petition of contest and the notice not stating when it would be filed, it did not confer jurisdiction over the person of the contestee. Adcock v. LeCompt, 66 Mo. 40; Fernekes v. Case, 75 Iowa 152; Holliday v. Cooper, 3 Mo. 286; Hodges v. Brett, 4 Green (Iowa) 345; 1 Tidd's Prac. (4 Am. Ed. from 9 London), secs. 164-167; 1 Chit. Rep. 615; 2 Moore 214; Titus v. Relyea, 16 How. 371; Hudson v. Blanfus, 22 Iowa 324; Turnpike Co. v. Hall, 17 N.J. 338. (6) The Constitution (secs. 3 and 9, art. 8) and section 7029 of the election statutes having unmistakably made an election contest a case, that is, a suit or action, of which the circuit court is given exclusive original jurisdiction, the constitutional provision on process (sec. 38, art. 6), section 566 of the Civil Code and section 4681 of the chapter on writs, are controlling as to the manner of the commencement of the suit and the method of securing jurisdiction over the person of the contestee. (7) If section 7029 can be construed as authorizing the notice therein provided for to serve as both petition and summons, then it must mean that it can only operate as a petition when filed and as a summons when served. Wash v. Craig, 134 Mo. 347. (8) To sustain the jurisdiction of the court over the person of the contestee in the alleged contested election case now under review, this court will have to construe section 7029 as meaning that a mere notice of an intention to sue at the next term of court, naming the day when the same is to be begun, operates to bring the suit without filing the notice to serve as a petition. Such a construction is unprecedented, unreasonable and cannot be sustained. (9) If section 7029 read expressly that the notice of contest therein provided for should serve as a petition and process, and no other petition or process should be required, then no court would hesitate to construe it as meaning that it must be filed to serve as a petition. (10) The alleged notice is not constitutional process, and is therefore a nullity. Any notice which serves to bring a defendant into court is process within the meaning of section 38 of article 6 of the Constitution of 1875. Fowler v. Watson, 4 Mo. 27; Street v. Beckett, decided at Fayette in 1834; Charles v. Marney, 1 Mo. 537; Little v. Little, 5 Mo. 227; Davis v. Wood, 7 Mo. 162; Doann, King & Co. v. Boley, 38 Mo. 449; Jump v. Batton's Creditors, 35 Mo. 197; Hansford v. Hansford, 34 Mo. 263; Williams v. Munroe, 125 Mo. 574; Smith v. Hackley, 44 Mo.App. 614; Horton v. Railroad, 26 Mo.App. 349; Burrill's Law Dictionary, under head "Process"; Curtis v. McCollough, 3 Nev. 210; Gilbraith v. Kuykendall, 1 Ark. 50; Staten v. Newcomer, 6 Ark. 451; Gorman v. Steed, 1 W.Va. 13; Beech v. O'Riley, 14 W.Va. 55; Hughes v. Phelps, 1 Brev. 81; Knott v. Pepperdine, 63 Ill. 219; Wallahan v. Ingersoll, 117 Ill. 123; Hutchins v. Edson, 1 N.H. 39; Paper Co. v. Paper Co., 19 F. 252; Dwight v. Merrit, 18 Blatch. 305, 4 F. 416; Wilson v. Railroad, 18 S.W. 293, 108 Mo. 588. (11) The circuit court was without jurisdiction to make an order or writ opening the ballot boxes in this case, because contestant's petition to open the ballot-boxes contains no specific allegations of fact showing the right to have the ballot-boxes opened, even if the contest case had been property pending. The allegations in the petition to open the ballot-boxes are nothing more than a statement of a conclusion that the ballots were wrongfully counted by the judges and clerks of election, with no charge of fraud and no specification as to mistake. It is apparent that the general indefinite and unspecific allegations are mere guess or surmise, not even in good faith, based on no information or reason. The attempt to open the ballot-boxes is simply a fishing expedition by which the contestant hopes he may gather from the ballot-boxes some evidence somewhere of some mistake in the count. The allegations are not sufficient to overcome the strong legal presumption as to the correctness of the official returns, which were made under oath of office of the judges and clerks of election, and aggregated, and their result determined by the board of election commissioners. State ex rel. v. Spencer, 166 Mo. 277; Borders v. Williams (Ind.), 57 N.E. 527; Whitney v. Blackburn (Ore.), 21 P. 874; Lodd v. Stewart (Col.), 23 P. 426; Edwards v. Logan (Ky. App.), 69 S.W. 800; Lehlbach v. Haynes (N.J.), 23 A. 422; State ex rel. v. Spencer, 164 Mo. 23; State ex rel. v. Fisher, 164 Mo. 47; State ex rel v. Spencer, 164 Mo. 48; State ex rel. v. Spencer, 164 Mo. 55.

Selden P. Spencer, William Dee Becker, John S. Leahy, Edward D'Arcy and Walter J. G. Neun for respondents.

(1) Pursuant to the constitutional provision by general law the General Assembly has designated the court by whom the several classes of election contests shall be tried, and has regulated the manner of trial and all matters incident thereto. Sections 7029 to 7033, Revised Statutes 1899, provide both for the institution of municipal election contest cases, and for the procedure necessary thereto. (2) These provisions of the general law form a code unto themselves. Castello v. Circuit Court, 28 Mo. 259; State ex rel. v. Klein, 116 Mo. 268; Gumm v. Hubbard, 97 Mo. 318; State ex rel. v. Smith, 104 Mo. 667; State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Keschler, 134 Mo. 18. (3) Sections 7029 to 7033 are constitutional. The notice in an election contest takes the place of the writ and petition in the ordinary civil action, and the commencement of the election contest begins with the notice of contest. Castello v. Circuit Court, 28 Mo. 259; Gumm v. Hubbard, 97 Mo. 318; State ex rel. v. Smith, 104 Mo. 667; Nash v. Crag, 134 Mo. 353; Saunders v. Lacks, 142 Mo. 225. (4) "It has been uniformly ruled that statutes governing elections should be given a liberal construction whenever they admit it." "Courts justly consider the chief purpose of such laws, namely, the obtaining of a fair election, and an honest return as of a paramount importance to the minor requirements which prescribe the formal steps to reach that end." Nash v. Craig, 134 Mo. 354; Bowers v. Smith, 111 Mo. 62; Gumm v. Hubbard, 97 Mo. 319; People v. Board, 129 N.Y. 359. (5) Section 38, article 6, of the Constitution, concerning writs and process, and requiring "all writs and process shall run and all prosecutions shall be attested in the name of the State of Missouri," applies to cases where the writ and process are required by law; that is to say, whenever a writ and process is by law required, then it shall run in the name of the State of Missouri. (a) This provision is merely directory, and has been expressly so held. Davis v. Wood, 7 Mo. 165. The failure to comply with this requirement of the Constitution is regarded as a mere irregularity. Junk v. Batton, 35 Mo. 196; Doan v. Boley, 38 Mo. 450; State v. Foster, 61 Mo. 550; Riesterer v. Horton L. & L. Co., 160 Mo. 151; State v. Brown, 181 Mo. 230. (b) In election contest cases the notice of contest has been expressly provided for to take the place of a writ and acts in the stead thereof. (c) Section 675, Revised Statutes 1899, which distinctly specifies the class of cases to which the Civil Code applies, and which thus requires a writ to run in the name of the State, does not include election contests among those enumerated; and thus it has been expressly held that election contest cases are not governed by the provisions of the Code, but are governed by sections 7029 to 7033. State ex rel. v. Spencer, 166 Mo. 285. (d) Section 566, Code of Civil Procedure,...

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