Bradley v. Page, 4948.

• Citation: 46 S.W.2d 208
• Decision Date: 04 February 1932
• Docket Number: No. 4948.,4948.
• Parties: BRADLEY v. PAGE.
• Court: Court of Appeal of Missouri (US)

46 S.W.2d 208

BRADLEY v. PAGE.

No. 4948.

Springfield Court of Appeals. Missouri.

February 4, 1932.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

"Not to be officially published."

Action by Hiram Bradley against J. W. Page. From a judgment for plaintiff, defendant appeals.

Affirmed.

Wilbur J. Owen and R. A. Pearson, both of Joplin, for appellant.

Chas. M. Grayston, Ray Bond, George V. Farris, and R. E. Hollingshead, all of Joplin, for respondent.

SMITH, J.

The record before us shows that, at the general city election of April 1, 1931, contestant Hiram Bradley and contestee J. W. Page were the candidates for the office of municipal judge of the city of Joplin. The city council, sitting as a canvassing board, certified and declared the contestee, J. W. Page, elected by a majority of three votes. Contestant Bradley, on April 17, 1930, served on contestee, Page, a notice of contest of election, and filed his contest in the circuit court of Jasper county, at Carthage, on June 3, 1930, the first day of the regular June, 1930, term of said court, and the next term of circuit court in Jasper county following said election. On the same day, contestee, Page, filed a counter notice and answer, and also a motion to strike out part of contestant's petition or notice. By stipulation of the parties, the case was transferred to the September, 1930, term of said court at Joplin. During said term the court, after hearing the motion to strike out argued, overruled the same. Contestant Bradley later filed a motion to recount the votes in voting prectincts known and numbered 3, 13, 5, 11, 12, 14, 18, and 19, and to have the number of votes cast for contestant and contestee reported to the court. This motion was sustained October 25, 1930, and the city clerk of the city of Joplin was ordered to certify the same to the circuit court of Jasper county, division 1, on the morning of October 30, 1930, which report the city clerk filed October 29, 1930, and the court set the case for hearing November 7, 1930.

On the day set for hearing of the case, November 7, the contestee asked permission to file an amended counter notice and answer, and moved the court for an order to have the votes in all the precincts of the city recounted. The court refused permission to file the amended counter notice and answer because it was filed out of time, and refused the request to recount the votes in other precincts, using the following language: "Request for recount will be overruled, for the reason it comes too late; and for the further reason counsel for contestant at the time the court made the order for recount in certain precincts, agreed that all ballots in all precincts be counted. The offer was refused by counsel for contestee unless contestant withdraw his challenge of certain voters named in the notice."

We shall not set out the pleadings in full here, but shall hereinafter refer to such parts of the pleadings as we shall deem necessary in reaching our conclusions.

On November 15, 1930, the court rendered the following judgment:

"The court, after hearing all the evidence and having opened, examined, and read the report filed herein by the city clerk of the City of Joplin, of the recount of the ballots in certain voting districts in the City of Joplin made under the order of this court heretofore rendered, the report of said clerk having been offered as evidence, in the cause, and the court having heard argument of counsel and being fully advised in the premises, finds the issue in favor of the contestant and against the contestee, and that the contestant was at the regular municipal election of the city of Joplin held in the said city on the 1st day of April, 1930, duly, regularly, and legally elected to the office of Municipal Judge of said city, and that said contestant is entitled to hold said office and receive all perquisites and emoluments thereto appertaining.

"It is therefore ordered, adjudged and decreed by the court that the contestant herein, said Hiram Bradley, enter upon, and from the date of this order, discharge the duties and functions of the office of Municipal Judge of the City of Joplin, upon presenting himself and qualifying for said office to the proper officer or officers as provided by law, and said contestant, said Hiram Bradley, is hereby declared, adjudged and decreed to be the legally elected and qualified incumbent of the office of Municipal Judge of said city of Joplin from and after the date of the rendition of this judgment; and it is further ordered, adjudged and decreed that the contestee, the said James W. Page shall give up said office to said contestant, said Hiram Bradley, and deliver to said contestant all books, records, papers, property and effects pertaining to said office, forthwith, and that attachment of this court issues pursuant to this judgment.

"It is further ordered, adjudged, and decreed that the contestant have and recover of and from the contestee his costs herein expended, and that execution issue therefor."

Motion for new trial was filed, and, upon being overruled, an appeal was taken, and the case is here upon several assignments of error, which we shall consider in the order presented.

The first assignment of error is directed to the action of the trial court in overruling contestee's motion to strike parts of contestant's notice or petition. The parts of the motion to strike are set out in appellant's abstract of the record, as follows:

"All that matter of said Notice contained in the paragraphs numbered `2' thereof, alleging that contestant received 178 votes in voting district No. 3 in the described city election but that the canvassing board reduced same to 173 on the showing of the tally sheets, disregarding the certificate of the election board.

"All that matter of said Notice contained in the paragraphs numbered `3' thereof, alleging that in the six precincts designated, the canvassing board resorted to the tally sheets in the absence of certificates of the election boards, and canvassed and found the number of votes cast in said precincts at said election.

"All that matter of said Notice contained in the paragraph numbered `7' of said notice alleging that sections 4882, 4883, 4884, and 4885, R. S. Mo. 1919, are inapplicable to elections in cities of the second class.

"For the reason that said allegations do not state sufficient grounds or reasons for contesting said election, and are not competent or lawful causes for contesting same."

The provisions for counting ballots and certifying the results of such count in municipal elections of cities of the second class, of which the city of Joplin is one, is found in Revised Statutes of Missouri 1929, §§ 6517 and 6519. Since the motion to strike was directed to that portion of contestant's notice complaining of the action of the canvassing board in arriving at the total vote within certain precincts, we think no error was committed in overruling the motion.

Under the second assignment contestee complains that the court erred in ordering a...