Berry v. Hull

• Decision Date: 24 August 1892
• Citation: 30 P. 936,6 N.M. 643
• Parties: BERRY et al.v.HULL et al.
• Court: New Mexico Supreme Court

6 N.M. 643

30 P. 936

BERRY et al.

v.HULL et al.

Supreme Court of the Territory of New Mexico.

Aug. 24, 1892.

Appeal from district court, San Juan county; EDWARD P. SEEDS, Judge.

Action by Edward T. Berry and others against Henry Hull and others to contest an election to locate a county seat. From a judgment for plaintiffs, defendants appeal. Affirmed.

The opinion of the trial judge, referred to in the opinion of the supreme court, is as follows, (SEEDS, J.:)

“According to chapter 7 of the Laws of 1889 of this territory, the legal voters of San Juan county were authorized, at the general election of 1890, to vote upon the question of locating a permanent county seat for their county. In accordance with the requirements of that law, a vote was had upon November 4, 1890, that being the general election, there being three places voted for, to wit, Junction City, Aztec, and Farmington. The board of county canvassers duly declared Junction City as the county seat, it having a majority of nine over Aztec, the next nearest competitor. The county seat had been temporarily located at Aztec. Upon the declaration of the result, the complainants herein instituted proceedings in equity to restrain the defendants, who were officials of the county, from removing the records from Aztec to Junction City, and for such other and further relief as may be equitable in the premises. A temporary injunction was allowed, but upon the hearing it was dissolved, and the records were removed to Junction City. There were various amendments allowed to the bill, after which the case was referred to an examiner to take testimony. Testimony was taken during the months of August and September, 1891. After the testimony was closed, the complainants asked leave to amend their bill to make its allegations conform to the testimony. The defendants objected to the allowance of this amendment, both by motion to strike out and by saving their rights in their answer. The defendants asked more time to take further testimony. During the taking of this testimony the complainants introduced evidence tending to show that three persons who had voted for Junction City were not at that time citizens of the United States. Thereupon they asked leave to amend their bill again to conform their allegations to the proof. To this request the defendants objected. Upon an intimation from the court that, if it granted the amendment, it would give the defendants more time to take testimony, the complainants withdrew their motion, insisting that the proof was material and seasonable upon the general allegations of the bill. At the hearing the defendants first insisted upon their motion to strike the amendment from the files, which was filed after the taking of the testimony. Upon that motion I am first to pass. Before doing so, however, it will be necessary to look at the allegations of the pleadings which are legally and unquestioned in the case. In the original bill upon which the injunction was asked, it is alleged ‘that at such pretended election y(3)5C numbers of illegal and fraudulent ballots were cast, which ought not to have been received or counted by the judges of election of the various precincts.’ Then there is an allegation that one Sam Johnson had voted for the place known as ‘Junction City,’ who had only been in the territory 40 days; and continuing, the bill says ‘that numerous other persons, to your orators unknown, likewise voted illegally and fraudulently at such election, and voted in favor of the location of the county seat at the place known as “Junction City;” that there were more than enough of such illegal and fraudulent ballots cast for the location of the county seat at Junction City to change the result,’ etc. They further allege that certain parties interested in Junction City 'illegally and fraudulently bribed and bought a large number of the legal voters y(3)5C to cast their ballots in favor of said place known as “Junction City,” instead of the town of Aztec;' and then they set out by what means they bribed the persons alleged to have been illegal voters. In their first amendment to the bill they go on to specifically name who were illegal voters, and whether so by reason of noncitizenship, minority, or bribery.

“When, then, the complainants introduced testimony as to any other parties than those already named in the bill and its first amendment, the defendants objected because there was no allegation as to those parties, and now strenuously contend that it is too late to amend the bill to conform with that proof. The contention of the defendants is, in the first place, that there can be no evidence as to illegal voting, unless the party as to whom the evidence applies is first named in the bill. Is this contention sound? There is no statute requiring the naming of the parties in an action of this character. By section 1170, Comp. Laws 1884, any candidate at an election could contest the election of his opponent by giving him notice, in which notice he was to give the names of the voters and the objections upon which he based his contest. The notice was, in fact, his petition. But by section 8, c. 135, Laws 1889, this was changed, so that now the contestant only has to set forth the grounds upon which he bases his contest. So, by no rule of analogy can it be said that in such a proceeding as this the complainants are bound to give the names of those who cast illegal votes. Is it required by any rule of pleading? But by every rule of pleading it is required that the allegations should be of ultimate facts, not of those facts which are simply testimony, and tend to prove the ultimate fact. It is true that pleading legal conclusions, or fraud generally, is forbidden, and, if taken advantage of by motion or demurrer, may cause the bill to be dismissed or amended. But in this case there has been no objection to the allegations of the bill. But are not the allegations of the bill as above set out substantially good? What is the cause of action? The statute under which this vote was taken says legal voters shall vote. If, then, illegal votes are cast, they should not be counted for the place for which they are cast. How should you allege that fact? By simply stating that a person or persons did cast an illegal vote. It makes no difference who cast it; if it was illegal, that is sufficient. It possibly would have been bad pleading to have alleged generally that there was illegal voting, or fraudulent voting; but there can be no objection to alleging illegality or fraud when the means by which it was accomplished is fully alleged, as it most certainly is in this bill. So, independent of the amendments, as long as the case was open for taking testimony, the complainants were legally entitled, under the allegations of their bill, to prove that persons were bribed to vote, or were not citizens, and therefore that the ballots cast by them were illegal; and all objections interposed to the reception of evidence, because there was no allegation as to specific persons in the bill, are overruled.

“But, even if I am wrong as to this proposition, I am convinced that the complainants had a perfect right to file the amendments which they have, including the last one withdrawn by them. The ground upon which the defendants contend that the amendments should be excluded is that at the time they were offered the testimony was closed, and it was too late. The old rule undoubtedly was: ‘ an order for leave to amend a bill may be obtained at any time before answer, upon motion or petition without notice; and, for the purpose of adding parties only, an order for leave to amend may be obtained in like manner at any time before the cause is set down for hearing;’ also ‘an order for leave to amend a bill, only for the purpose of rectifying some clerical error in names, dates, or sums, may be obtained at any time.’ 1 Daniell, Ch. Pl. & Pr. pp. 409, 410, 416, (4th Ed.) 6 Amer. & Eng. Enc. law, p. 807. This was undoubtedly the common-law rule, and, strictly, no amendments were allowed after the testimony was in, except as above set out. But that this was not an inflexible rule is evident from the fact that courts had gone so far upon the hearing of an appeal as to allow the plaintiff to change his bill into an information and bill, or information only. 1 Daniell, Ch. Pl. & Pr. p. 418.

“But that this rule has been materially changed and made more liberal by statutes and adjudications admits of no doubt. The rule now undoubtedly is that all amendments which do not change the substantial character of the bill, or which tend to further the ends of justice, are permissible, resting in the sound discretion of the chancellor, at any time previous to the entering of the decree. 6 Amer. & Eng. Enc. Law, pp. 807, 808. Church v. Holcomb, (Mich.) 7 N. W. Rep. 167-173; Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. Rep. 771 It is said that an amendment may be filed after the case is decided. Sawyer v. Campbell, (Ill. Sup.) 2 N. E. Rep. 660. And it is held error not to allow the complainants to amend at hearing to correspond with proof. Mix v. People, (Ill. Sup.) 4 N. E. Rep. 783. In the case of Hardin v. Boyd, supra, the error alleged was that the chancellor at the hearing had allowed the complainants to amend the prayer of their bill asking for something not contemplated by the allegations, of the bill. In passing upon this point, which the court held not to be error, Mr. Justice HARLAN says: ‘It may be said, generally, that in passing upon applications to amend, the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice. Undoubtedly great caution should be exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious inconvenience or expense to the opposite side. And an amendment should rarely, if ever, be permitted where it...