Borders v. Williams
| Citation | 57 N.E. 527,155 Ind. 36 |
| Decision Date | 08 June 1900 |
| Docket Number | 19,103 |
| Parties | Borders v. Williams |
| Court | Supreme Court of Indiana |
From the Pulaski Circuit Court.
Reversed.
George Burson, W. W. Borders and B. Borders, for appellant.
H. A Steis, M. M. Hathaway and F. J. Vurpillat, for appellee.
At the November election 1898, the county board of canvassers counted for appellant 1,383 votes, and issued to him a certificate of election as treasurer of Pulaski county. The board counted for appellee 1,377 votes for the same office. Appellee instituted this action under § 6314 Burns 1894 § 4758 Horner 1897, to contest appellant's election.
In the complaint and statement of his grounds of contest, appellee alleged that at said election there were counted for him 1,377, and for the contestee 1,383 votes, and the contestee was declared by the board of canvassers to be duly elected that appellee contested said election on the following grounds: (1) That he had received a greater number of legal votes than had been received by the contestee. "(2) For malconduct of the board of canvassers of said election in this, to wit, that the contestor in precinct number one of Tippecanoe township of said county received ninety-three votes, and that the contestee, Borders, received seventy-two legal votes, but that in estimating and counting the votes of said precinct the said board of canvassers, by mistake, only counted eighty-three votes for the contestor and seventy-two votes for the contestee as the whole number of votes cast in said precinct for the said contestor and contestee, whereas, in truth, the contestor, Williams, received ninety-three votes in said precinct at said election, and that he, said Williams, is eligible to hold said office."
Appellant, Borders, as contestee, answered in two paragraphs: (1) A general denial, and (2) that, while the several precinct officers and county board of canvassers counted for him but 1,383 votes for the office of treasurer, he, in truth and in fact, received 1,460 legal votes for said office, and that he received sixty-seven legal votes that were not counted for him, setting forth a number in each of twelve precincts aggregating sixty-seven; that said board of canvassers wrongfully counted as cast for the contestor forty-seven votes from precinct number one of Beaver township, and divers other votes in various precincts set forth in detail. Contestor, Williams, replied to the second paragraph of answer by a general denial. The commissioners awarded the election to the contestor by one vote, whereupon the contestee appealed to the circuit court, where the election was awarded to the contestor by four votes, from which judgment the contestee takes this appeal.
Under the issues formed as above stated, the court permitted the contestor, over the objection of the contestee, to introduce in evidence, and have counted in his behalf, two ballots that had been protested and rejected, in precinct number three of Monroe township, the same being marked in the record exhibits twelve and sixteen; and this action of the court presents the first question for consideration. It is earnestly contended by appellee that this evidence was admissible under the first clause of his complaint, which, in substance, alleges that he, the contestor, had received at said election a greater number of legal votes than were received by the contestee. By § 6312 Burns 1894, any election may be contested for any of the following causes:
The causes here enumerated must be held to constitute the only causes for which the contest of an election can be maintained; and it is provided by § 6314 Burns 1894, that "Whenever any elector shall choose to contest" any county or township office, "he shall file with the auditor of the proper county, within ten days after such person has been declared elected, a written statement specifying the grounds of contest;" that is to say, if irregularity or malconduct of election officers is relied upon, or if it is the contestee's ineligibility, or his previous conviction of crime, or on account of his having received illegal votes, the complaint, within these enumerated causes, must specifically set forth the particular facts counted upon as invalidating the election of the contestee. The averment that the contestor received more votes than the contestee is the averment of no fact within the purview of the enumerated causes. It challenges neither irregularity, nor malconduct of officers, nor ineligibility of contestee, nor his conviction of crime, nor his receipt of illegal votes. It is but tantamount to a general averment that the judgment of the county board of canvassers, pronounced upon the returns from the precincts, that the contestee had received the highest number of votes, was erroneous, which would be a mere conclusion, and present no question of fact, and, when pleaded as in this case, as an independent ground of contest, we must regard it as insufficient and surplusage.
In his second ground appellee specifically sets forth the malconduct of the board of canvassers in counting for him but eighty-three of the ninety-three of the legal votes received by him in the first precinct of Tippecanoe township, and upon this single fact he rests his contest. No complaint is made of the failure of the board to count for him contested ballots twelve and sixteen from the third precinct of Monroe township. This complaint appellant answered (1) by a general denial, and (2) that, while the board of canvassers counted for him but 1,383 votes, he in truth and fact received 1,460 legal votes; that he had received sixty-seven legal votes that were not counted for him by the board of canvassers, alleging a number of uncounted ballots in each of twelve precincts aggregating sixty-seven. To this second paragraph of answer appellee replied by a general denial.
Here we have two issues joined,--one on the complaint as to the failure of the board to count for the contestor ten votes from the first precinct of Tippecanoe township, to which he claims to be entitled; the second on the second paragraph of the answer as to the failure of the board to count for the contestee sixty-seven votes to which he claims to be entitled from various precincts of the county; and upon these issues and the facts therein specifically set forth the case was made ready and submitted to the court for trial. And the court "shall be governed in such trial by the rules of law obtaining in the circuit courts." § 6317 Burns 1894, § 4761 Horner 1897; Hadley v. Gutridge, 58 Ind. 302; Tombaugh v. Grogg, 146 Ind. 99, 107, 44 N.E. 994.
One of the rules obtaining in the circuit court is that the evidence must be confined to the facts in issue, and that the plaintiff must recover secundum allegata et probata, or not at all. It is said in Boardman v. Griffin, 52 Ind. 101, 106: "It would be folly to require the plaintiff to state his cause of action, and the defendant to disclose his ground of defense, if, on the trial, either or both might abandon such grounds and recover upon others which are substantially different from those alleged." See, also, Cleveland, etc., R. Co. v. Wynant, 100 Ind. 160, 166; Racer v. Wingate, 138 Ind. 114, 131, 36 N.E. 538; Neutz v. Jackson Hill, etc., Co., 139 Ind. 411, 414, 38 N.E. 324; Stevens v. Reynolds, 143 Ind. 467, 484, 41 N.E. 931; Cincinnati, etc., R. Co. v. McClain, 148 Ind. 188, 193, 44 N.E. 306; Thompson v. Citizens Street R. Co., 152 Ind. 461, 465, 53 N.E. 462.
We perceive no ground for the contention that in contested election cases the procedure is more liberal than in the trial of other civil causes with respect to the issues and evidence. The statute...
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