Ferran v. Trujillo.

• Decision Date: 26 December 1946
• Docket Number: No. 4948.,4948.
• Citation: 175 P.2d 998,50 N.M. 266
• Parties: FERRANv.TRUJILLO.
• Court: New Mexico Supreme Court

50 N.M. 266

175 P.2d 998

FERRAN

v.TRUJILLO.

No. 4948.

Supreme Court of New Mexico.

Dec. 26, 1946.

Appeal from District Court, Rio Arriba County; Wm. J. Barker, Judge.

Election contest by Jose Ferran, contestant, against Viones Trujillo, contestee, contesting the election of contestee to the office of County Commissioner of the Second District of Rio Arriba County in the general election of 1944. From an order of dismissal, contestant appeals.

Affirmed.

A notice of contest of election of county commissioner, stating that “by reason of the erroneous receiving, counting, tallying, and return of the votes in said precinct the correct result thereof was not certified to the county canvassing board”, was insufficient as not stating the specific facts upon which the “grounds” for contest were based. 1941 Comp. § 19-101, rules 8(a), 10 (a, c), §§ 56-601 et seq., 56-604, 56-606.

[175 P.2d 998 , 50 N.M. 266]

Reed Holloman and M. W. Hamilton, both of Santa Fe, for appellant-contestant.

Seth & Montgomery and Joseph M. Montoya, all of Santa Fe, for appellee-contestee.

BICKLEY, Justice.

Ferran and Trujillo were opposing candidates in the general election of 1944 for the office of County Commissioner of the second district of Rio Arriba County. Trujillo was declared elected on a canvass of the poll-book returns. Having (presumably) received his commission, qualified and entered on the performance of his official duties, in due time Ferran brought proceedings of contest by causing to be served on Trujillo a notice of contest, stating generally that if all legal votes cast in such election had been properly received, counted, tallied, and returned, it would appear that he, Ferran, had a majority of 231. This statement is supplemented by similar statements relating to each of nineteen voting precincts in the county. As to each of these precincts it is alleged generally, (but for the number of votes involved filled in between the time of typing and filing the notice) as follows:

‘That in Precinct ___, _____, of said County, the election officials of said precinct certified to the County Canvassing Board that contestant had received -- votes and that contestee had received -- votes in said precinct for said office; but that in said precinct contestant actually received -- votes and contestee actually received -- votes; that by reason of the erroneous receiving, counting, tallying, and returning of the votes in said precinct the correct result thereof was not certified to the County Canvassing Board; that by reason thereof said Canvassing Board did not include said -- votes in the total number of votes received by contestant, nor deduct said -- votes from the total number of votes received by contestee in said county for said office; that said -- votes should be credited to contestant and said -- votes should be deducted from contestee making the correct vote in said precinct for said office as hereinbefore specified.’ (Italics ours.)

The appellee filed his answer, setting forth several defenses, the second of which, so far as material, is as follows:

‘Without waiving his First Defense, but insisting upon same, this Contestee states the Notice of Contest fails to state facts upon which relief may be granted for the following reasons:

‘1. Said Notice shows upon its face in paragraphs III to XXII inclusive, that contestant's ground of contest as therein alleged is nothing more than an application for a recount of the ballots of the various precincts therein specified; that said allegations in said paragraphs are merely general allegations of error without pointing out any specific mistake or fraud, or the substance of the facts upon which his belief is founded, and therefore such general allegations of error believed to exist is not sufficient ground upon which to base a contest proceeding under the statutes of New Mexico.

‘2. That said Notice of Contest amounts to nothing more than an application for recount in said precincts and may not be maintained for the reason that the Legislature has made ample provision for such recount and such statutory enactment provides the exclusive remedy for such recounts.

‘3. That said Notice of Contest in said paragraphs alleges ‘erroneous receiving’ of ballots by said election officials, and wholly fails to comply with section 56-604 New Mexico Statutes 1941 Annotated, by specifying the name of each person whose vote was so illegally cast or counted, and the facts showing such illegality; that as to the remaining allegations of error by said election officials contained in said paragraphs in the ‘counting, tallying and returning of the votes,’ such alleged errors are to be corrected under the recount statutes and not by contest proceedings.

‘4. That said Notice of Contest fails to allege which ballots in the various precincts were ‘erroneously received’, and fails to allege any fraudulent act by any election official in said precincts, and therefore fails to specify grounds upon which a contest may be based under the laws of New Mexico.'

The trial court, considering the matter upon the affirmative legal defenses in the answer, entered an order of dismissal of the cause, in which appears the following: ‘and the court having heard argument of counsel and having announced his decision that the SECOND DEFENSE in the Answer of said Contestee is well founded in law and should be sustained, for the reasons that the Notice of Contest does not specify sufficient facts upon which to base a contest proceeding in New Mexico; and for the further reason said Notice of Contest can not be substituted as an application for a recount of votes under the laws of New Mexico;

‘It is therefore ordered that the Notice of Contest be and the same is hereby dismissed.’

From that order this appeal was taken. For the purpose of this review, we find it sufficient to consider only contestant's first assignment of error, which is as follows:

‘I. The Court erred in holding that the notice of contest does not specify sufficient facts upon which to base a contest proceeding under the Laws of New Mexico.’

Plaintiff's challenge is presented under Art. 6 of the Election Code entitled ‘Contested Elections,’ 1941 Comp. 56-601 et seq. Section 56-604 is as follows:

‘Contents of notice.-The notice shall specify the grounds upon which the claim of the contestant is based, and if he claims that illegal votes have been cast or counted for the contestee, he must specify the name of each person whose vote was so illegally cast or counted, the precinct or election district where he voted, and the facts showing such illegality. (Laws 1927, ch. 41, § 604, p. 62; C.S.1929, § 41-604.)’

Under our method of contesting elections, the notice of contest takes the place of a complaint in an ordinary suit. Therefore it must contain a plain statement of the claim showing that the pleader is entitled to relief. See 1941 Comp. 19- 101(8). The compiler's note says that par. (a) of the rule and Rule 10(a), (c), are deemed to supersede secs. 105-404, 105-501, 105-511, 105-525, Comp.Stat.1929, a portion of which follows:

‘Second. A statement of the facts constituting the cause of action, in ordinary and concise language.’

While the form of the rule has been changed, we do not understand that the necessity for pleading with particularity the facts upon which the claim or conclusion of the pleader is based, so as to give notice of what the adverse party may expect to meet, has been dispensed with.

In Missouri, there was an election contest statute similar to ours, and in Hale v. Stimson, 1906, 198 Mo. 134, 95 S.W. 885, 887, the Supreme Court unanimously held that a notice of contest must ‘set forth facts constituting grounds of contest.’ The court said:

‘The statutes require the ‘grounds' to be stated. Grounds, in the law, can only mean substantive averments, informal, maybe, but yet in plain terms setting forth a cause of action upon which issue may be joined, and which may, at least, tend to notify contestee of the charges he must face. Upon what theory can mere conclusions, such as constitute some of the framework of this notice, be considered issuable averments? As to the rest of the framework, oddly enough, it is built on ignorance-lack of knowledge. The description of unknown voters by name, color, size, or other earmarks; the...