Donovan v. Davis

• Decision Date: 11 April 1912
• Citation: 85 Conn. 394,82 A. 1025
• Court: Connecticut Supreme Court
• Parties: DONOVAN v. DAVIS.

82 A. 1025

85 Conn. 394

DONOVAN v. DAVIS.

Supreme Court of Errors of Connecticut.

April 11, 1912

Appeal from Superior Court, New Haven County; Lucien F. Burpee Judge.

Election contest by Daniel J. Donovan against Charles H. S. Davis. Judgment for petitioner, and defendant appeals. Affirmed.

The petition alleges the due election of the plaintiff as mayor of the city of Meriden, but that the respondent was declared elected mayor, and asks for a recount of the ballots and the issuance of a certificate to the petitioner as mayor of said city.

Henry T. King, James H. Webb, and Patrick T. O'Brien, for appellant.

William C. Mueller, Alfred B. Aubrey, and George A. Clark for appellee.

WHEELER, J.

This is a petition brought by Daniel J. Donovan under Gen. St. § 1823, as amended, against Charles H. S. Davis, alleging that a number of ballots were improperly counted for the office of mayor at the city election held at Meriden on December 19 1911, and as a result the respondent was declared elected, although in truth the petitioner was elected, and praying for a recount of the ballots and the issuance of a certificate of election to the petitioner.

The first three assignments of error do not specifically state the errors claimed, and for that reason will not be considered. Gen. St. § 802; Walker v. Waterbury, 81 Conn. 13, 15, 69 A. 1021.

The record does not show that the claims of the seventh assignment of error concerning the disputed ballots were made on the trial; hence they are not before this court. Decker v. Mann, 80 Conn. 86, 87, 66 A. 884. The finding expressly states that " no objection nor exception was made or taken by any one at any time to anything done or omitted, or to any ruling or decision made." For this reason, the finding states no record was kept or memorandum made showing the claims or rulings upon any particular ballot.

As to three classes of marked ballots, the finding states that certain claims were made by the respondent, but the number of these ballots is not known, and we cannot know whether the result was affected by these. The claims are too indefinite to enable us to know what did appear on these ballots, or whether they contained votes for the petitioner or the respondent.

Claim " a" will serve as an example of these: " That five ballots cast with the crossmark ‘ +’ under the printed word ‘ Yes' in the column containing the water bond proposition should have been counted for the respondent." As the case comes to us, none of the ballots alleged to have been improperly counted, and no full description of these are before us. We are therefore not in a position to determine whether the trial judge correctly counted these ballots. Upon this record, the correctness of this count must be accepted, and upon it it is an indisputable fact that on the count of the ballots by the trial judge the petitioner received a plurality of the votes cast.

And in argument the senior counsel for the respondent expressly stated that, upon the record as it existed, he did not attack the correctness of the vote as made by the trial judge, but did attack the certificate issued to the petitioner by the trial judge on two grounds: (1) That the trial judge erred in denying the motion to expunge. (2) That he erred in opening the ballot boxes.

As to the ruling on the demurrer to expunge covered by the sixth assignment of error. The paragraphs of the petition complained of set forth various alleged mistakes in the count. The motion to expunge attacks separately the different paragraphs of the petition which alleged the existence of unlawful ballots counted for the respondent or lawful ballots not counted for the petitioner. These paragraphs are those which are vital to the cause of action. The necessity for a speedy hearing of actions of this character will forbid the spending of much time in joining issue. The pleadings should approximate the ordinary procedure but should never be permitted to delay a speedy hearing. If the strictest rules of pleading were to be applied in this case, the motion was properly decided, and these conclusions must result.

If the several parts of this cause of action were irrelevant and immaterial, the complaint was also and should have been attacked as such by demurrer. Hill v. Fair Haven & W. R. Co., 75 Conn. 177, 179, 52 A. 725. In fact, none of the allegations of the several paragraphs of the petition were so irrelevant or immaterial that they should have been expunged.

If the respondent intended by his motion to attack the sufficiency of these several paragraphs, this could not be done by either a motion to expunge or by a demurrer. A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by demurrer. The only remedy " by which to attack the sufficiency of a cause of action or defense, whether stated in one pleading, count, or defense, or in a paragraph or paragraphs thereof," is a demurrer. Practice Book (1908) p. 247, § 155c. Where, apparently, several causes of action or defenses are stated in a single pleading or count, and it is desired to demur to any one of these several causes, a proper method would be to state as to each cause the pleader desires to reach by demurrer: " In so far as the pleading or count purports to state the cause of action or defense, viz., *** the plaintiff or defendant, as the case may be, demurs because" (stating the several grounds). In this way a ruling may be had, either sustaining the cause, or eliminating it from the case.

The motion to expunge must be confined to the grounds of the statutory remedy. Public Acts of 1905...