Church v. Walker

• Decision Date: 14 July 1897
• Citation: 72 N.W. 101,10 S.D. 90
• Parties: CHURCH v. WALKER.
• Court: South Dakota Supreme Court

72 N.W. 101

10 S.D. 90

CHURCH v. WALKER.

Supreme Court of South Dakota

July 14, 1897

Appeal from circuit court, Lyman county; Frank B. Smith, Judge.

Proceeding by L. E. Church against Elisha Walker to contest the election of defendant to the office of county judge. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Fuller J., dissenting.

J. G Bartine and James Brown, for appellant. S. H. Wright and I N. Auld, for respondent.

CORSON P. J.

This was an election contest, wherein the plaintiff claimed he was duly elected county judge of Lyman county, but that, by a mistake in counting the vote, the canvassers declared the defendant elected, and issued to him a certificate of election. Judgment for the plaintiff, and the defendant appeals.

Upon calling the first witness on the part of the plaintiff, the defendant objected to the introduction of any evidence under the notice of contest, upon the ground, among others, that "the notice of contest does not state facts sufficient to constitute a cause of action, and because the court has no jurisdiction to try the case, for the reason that the notice of contest fails to allege that plaintiff is eligible to the office of county judge of said county, and fails to state that plaintiff is a citizen of the United States, or that he is twenty-five years of age, or that he had resided in the state of South Dakota for one year preceding his election, or at the time of the election he was a resident of the county of Lyman, S. D., or that plaintiff is learned in the law; *** and the notice of contest is not signed by the district attorney of said county, and does not show that said contest is allowed by the court or the judge thereof." The objection was overruled, and an exception taken. It affirmatively appears from the abstract that "no evidence whatever was offered or received tending to prove that plaintiff was at any time a citizen of the United States, or of the age of twenty-five years, or that he had resided in Lyman county for one year preceding his election to wit, at the time of the general election, in November, 1896, or that at the time of such election, or at any other time, he was a resident of said Lyman county, or that he was learned in the law, or that he possessed any of the qualifications required by the constitution of the state for the office of county judge." The grounds of the objection having been specifically pointed out at the time the objection was made, and it affirmatively appearing that no evidence was given to supply the facts claimed to have been omitted from the notice of contest, the question is fairly presented as to the sufficiency of the notice of contest.

There are no allegations in said notice as to plaintiff's qualifications, other than those found in paragraphs 1 and 5 of the notice, which are as follows: "(1) That the plaintiff is an elector of said county, and was a candidate regularly and duly nominated *** in convention assembled for the office of county judge, at said election, *** and that the defendant was the only opposing candidate for said position or office." "(5) The plaintiff alleges that he received a majority of the legal votes cast at said election for the office of county judge of said county, and was duly elected to said office; and he further alleges that, if said errors and mistakes were corrected, it would clearly appear that he was elected." It is contended by the appellant that as the contest was brought by the respondent in his own name, to establish his title to the office, he must show by the averments in his notice of contest that he possesses the requisite qualifications to entitle him to hold the office, and that a failure to allege and prove that he possesses the requisite qualifications renders the notice of contest and the judgment fatally defective. As will be observed, in the first paragraph the plaintiff states that he was regularly and duly nominated for the office of county judge, and that in paragraph 5 he alleges that he was duly elected, having received a majority of the legal votes cast at the election, and that, when the errors and mistakes referred to in the other paragraphs are corrected, it will appear that he was duly elected. If, therefore, it was necessary for the plaintiff to allege in his notice of contest that he possessed the requisite qualifications to entitle him to hold the office,--a point we do not deem it necessary to decide in this case,--the allegations in the notice were sufficient. Rounds v. Smart, 71 Me. 380; Ledbetter v. Hall, 62 Mo. 422. In the latter case the supreme court of Missouri says: "1 Wag. St. p. 573, § 54, provides that, 'in every contested election, the party contesting shall give to the opposite party notice in writing, ten days before the term of the court, at which such contest is to be tried, specifying the grounds upon which he intends to rely, the name of all voters objected to, with the objections.' *** The statement in the notice, that the contestant had been duly and legally elected to the office in controversy, necessarily implied his eligibility for the official position. But the statute, as above seen, makes no requirement of the kind in the notice referred to." It will be noticed that the statement required in the Missouri statute is quite similar to that required to be stated in the notice under our contest statute. Comp. Laws, § 1489. The last clause of that section reads as follows: "Which notice of contest shall be in writing, and shall set forth the facts and grounds upon which the contestant relies in his contest, and may be verified as a pleading in a civil action." The allegation in the notice of contest that "he was duly elected" was not denied, except by the specific denial that the plaintiff received a majority of the votes polled in the two precincts specified in his notice; hence no proof was required, under the allegations in his notice, and the denials in the answer, that he possessed the requisite qualifications. The fact that he was eligible was in legal effect admitted by the answer, there being no general denial. The other objections made to the notice of contest were, in our opinion, untenable, and the court ruled correctly in admitting evidence under it.

This brings us to the merits. There were a number of ballots challenged by the respective parties at the trial, and the original ballots were very properly annexed to and made a part of the bill of exceptions. As the respondent served an additional abstract, in which he denies that the ballots in controversy contained the markings stated by appellant in his original abstract, we are required by our rules to examine the original bill of exceptions, to determine which abstract is correct. On the canvass by the county board of canvassers that board determined that the defendant received 98 votes, and the plaintiff 95 votes, and the certificate of election was accordingly issued to the defendant. On the trial the learned circuit court held that the judges of election erroneously counted three votes for the defendant which should have been counted for the plaintiff, and concluded that the plaintiff received a majority of the votes polled at the election, and was therefore legally elected. These three votes were apparently counted for the defendant by the judges of election for the reason that a cross was made to the left of the name of the defendant, notwithstanding the fact that the tickets on which the plaintiff was a candidate were properly marked by a cross in the circle at the head of the tickets, and plaintiff's name was not erased. The action of the judges was in direct...