Gimbel v. Green
| Decision Date | 04 April 1893 |
| Citation | 33 N.E. 964,134 Ind. 628 |
| Parties | GIMBEL v. GREEN. |
| Court | Indiana Supreme Court |
Appeal from circuit court, Knox county.
Proceedings by John L. Green against Seleman Gimbel to declare defendant not elected to the office of councilman of the city of Vincennes, and to declare plaintiff so elected. There was judgment declaring defendant not elected, and that each party pay his own costs. Plaintiff and defendant moved separately that the judgment for costs be so amended as to make his opponent liable for all the costs. These motions were overruled, and both parties appeal. Judgment for costs reversed.H. Burns and Cullop & Kessinger, for appellant. G. G. Reiley, for appellee.
At a special election duly held in July, 1890, in the Third ward of the city of Vincennes, Knox county, Ind., for the election of a councilman of said ward, the appellant and appellee were each candidates for said office, and were the only persons for whom ballots were cast for said office at said election, and they were both eligible to said office. The election board received and counted for the appellant 122 votes and for the appellee 119 votes, and duly made return to the clerk of said city accordingly. The appellee filed his notice of contest with the clerk of the circuit court of said county, alleging the facts aforesaid, and that appellant was claiming to hold and exercise the duties of the office by virtue of said election. Also alleging that there were three illegal votes cast and counted for appellant, and that there were eleven legal votes duly cast at said election for the appellee which were excluded by the election board, and not counted for the appellee; that, if the three illegal votes counted for the appellant had not been counted, the vote would have been a tie, and if the eleven legal votes cast for appellee had been counted he would have had a majority of the votes cast for councilman at said election. Wherefore the appellee says he was duly elected, and asks that he be adjudged elected, and to have and to hold the office, and that appellant be adjudged to have no right, title, or claim to the office, and for all proper relief. Upon the filing of the notice the clerk of the court issued a notice directed to the appellant. The notice commenced in the following manner: “State of Indiana, Knox county-ss.: To Seleman Gimbel: You are hereby notified that John L. Green has filed in the office of the clerk of the Knox circuit court a statement of contest by him of your election as councilman of the Third ward of the city of Vincennes, county of Knox, and state of Indiana, of which the following is a copy: [here setting out a full copy of the notice, and then concluding as follows:] Said matters of contest will be heard at the September term of the Knox circuit court, to be held in the courthouse in said city, beginning on the first day of September, 1890, or so soon thereafter as said matters may be heard by said court,” concluding in the usual form, and signed by the clerk, and the seal of the court attached. This notice was delivered to the sheriff, and duly served by him by delivering to the appellant a certified copy of the same. Appellant made a motion to quash the notice of contest, which was overruled. Appellant moved the court to strike the cause from the docket, to make the statement of contest more specific, and demurred to the statement of contest, which motions and demurrer were by the court overruled. Issue was joined by answer in denial to the statement of contest. The cause was submitted to the court for hearing, and the court found that the appellant and appellee were the only candidates for the office of councilman in said ward voted for at said election; that each were eligible to the office; that each received the same number of legal votes for said office; that neither was legally elected; that appellee received a certificate of election, and that he qualified and was acting as such councilman, and adjudged and decreed that neither the contestor nor contestee was legally elected as councilman of said ward at said election; that the election and certificate of election issued to the appellee in pursuance thereof be set aside and declared void; that a certified transcript of the proceedings be certified by the clerk of the court to the mayor and common council of said city; that the contestor and contestee each pay the costs by him respectively made. Appellant moved to modify the judgment by omitting from the judgment the portion canceling the election and certificate of election, and holding them void, and ordering a transcript of the proceedings certified to the mayor and common council of said city, and further to modify and change the judgment for costs so as to adjudicate and render a judgment against the appellee for all the costs, which motion was overruled. Errors are assigned on these several rulings by the appellant. The appellee also moved the court to modify and change the judgment for costs, and to render a judgment against the appellant for all the costs, which motion was overruled, and appellee assigns cross errors on this ruling.
Appellant first discusses the question presented by the ruling of the court in overruling the motion to quash the notice. It is contended that the notice is insufficient, for the reason that it states no time or place for the hearing. This objection is based upon the grounds that, as section 4760, Rev. St. 1881, provides that when statements of contest are filed with the county auditor, he shall issue a...
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