Bailey v. Fly

• Citation: 79 S.W. 299
• Parties: BAILEY v. FLY.
• Decision Date: 14 March 1904
• Court: Supreme Court of Texas

Page 299

79 S.W. 299 BAILEY
v.
FLY. Supreme Court of Texas. March 14, 1904.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Election contest by L. H. Bailey against Ben W. Fly. Judgment was rendered in favor of contestee, from which contestant appealed. On certified questions from the Court of Civil Appeals.

Dabney & Lockett, for appellant. Proctors, for appellee.

WILLIAMS, J.

Certified questions from the Court of Civil Appeals for the First District as follows:

"This cause now pending before us on appeal is an election contest brought by the appellant, Bailey, under the statute to contest the result of an election for the office of county judge held in the county of Victoria in November, 1902, in which appellee, Fly, was declared to have received the greater number of votes. Certain questions have arisen therein which we deem it wise to certify for your decision.

"The action was instituted on December 2, 1902. Bailey's original pleading, after necessary formal allegations, contained as ground for contest averments, in substance, that the result as declared by the commissioners' court gave contestee 949 votes, Bailey 946 votes, and Thurmond (the other candidate for the office) 473 votes; that in certain named voting boxes certain votes were cast for him (contestant) which were not counted for him, and he alleged valid reasons why they should have been counted for him; that certain named persons voted at certain named boxes, and their votes counted for Fly; that they were not qualified voters, and the reasons for their disqualification are set out. Contestant prayed for a hearing and recount, and that the office be awarded to him.

"On the 12th day of December, 1902, contestee filed his answer. This consisted of demurrers, a general denial, and special denials. Then followed allegations that, if any of the voters named by contestant were in fact illegal and unqualified, they voted and were counted for Bailey, and not Fly, and that the alleged rejected and uncounted legal votes were cast for him, the contestee. Further, that if in fact illegal votes were cast and counted for contestee, as alleged, that nevertheless a large number of illegal votes were cast and counted for contestant in numbers more than sufficient to offset those complained of by contestant. Then follow general allegations in which a general investigation and recount is courted and prayed for, after which comes the prayer for judgment.

"This, in substance, is the original answer of contestee. No illegal voter is named as having voted for Bailey, nor is any ground stated for the charge of illegality, nor is any voting box named at which any illegal voter for Bailey is charged to have cast his vote. District court was in session on the day contestee's answer was filed, but adjourned by operation of law on the following day.

"On December 12th contestant filed special exceptions to the answer on the ground that, in so far as it sought to set out illegal votes or other matter in offset to that averred by contestant, the allegations were too vague and general to authorize the admission of proof, were mere `fishing' allegations, and that the answer on its face a sham; that contestant had the right to more specific averments, in order to be able to meet them. Upon these demurrers contestant sought a ruling by the court, but for lack of time they were passed to the following term.

"On April 8, 1903, in vacation, contestee filed an amended answer, in which the allegations in the original answer were reiterated, but in which persons alleged to have voted illegally for Bailey were named, and the facts rendering them disqualified to vote were specifically set out, and setting out other matters, which, in view of the evidence adduced at the trial, need not be here mentioned.

"On April 25th contestant filed a motion to strike out the answer of April 8th on the ground that it set out new matter not embodied in nor germane to the matters alleged in the original answer, and that the amendment came too late; and, lest the court should overrule his motion and exceptions, contestant filed further pleadings...