Goben v. Murrell

• Citation: 190 S.W. 986,195 Mo.App. 104
• Parties: G. A. GOBEN, Appellant, v. CHARLES E. MURRELL, Respondent
• Decision Date: 18 December 1916
• Court: Court of Appeals of Kansas

190 S.W. 986

195 Mo.App. 104

G. A. GOBEN, Appellant, v. CHARLES E. MURRELL, Respondent

Court of Appeals of Missouri, Kansas City

December 18, 1916

Rehearing Denied 195 Mo.App. 104 at 110.

Appeal from Adair Circuit Court.--Hon. C. D. Stewart. Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed.

H. F Millan, J. C. Fugate and A. Doneghy for appellant.

Campbell & Ellison, Weatherby & Frank and J. A. Cooley for respondent.

OPINION

ELLISON, P. J.

Contestant Goben and contestee Murrell were opposing candidates for Mayor of the city of Kirksville, the latter being elected on the face of the returns. Contestant instituted a contest of the election and the judgment in the trial court was against him. He appealed.

The ground of the contest is that two hundred students of the American School of Osteopathy in Kirksville voted for the contestee whom the contestant charges were not legal voters, in that they had not resided in such city more than sixty days prior to the election.

The case was submitted to the trial court upon the following agreed statement of facts neither party asking declarations of law, and it was not necessary that he should do so, viz:

". . . That at a primary election held in said city on the 21st day of March, 1916, contestant and contestee were duly and regularly nominated as candidates for the office of Mayor of said city. That the two candidates above mentioned were the only candidates voted on for the office of mayor at the regular city election held April, 4, 1916. That the votes cast at said general city election for said candidates were officially counted on the 5th day of April, 1916, and by official count and returns it showed a total vote for G. A. Goben, contestant, of 770, and a total vote for Charles E. Murrell, contestee, of 804. The face of such returns showing that Charles E. Murrell, contestee, received a majority of the votes cast at said election and that thereafter a certificate of election was issued to said Charles E. Murrell contestee, and that he thereupon entered into his duties of Mayor of said city and is now filling said office. It is further agreed that the contestant possessed at all of said times herein mentioned, and does now possess all of the qualifications required by law for the office of mayor of the said city of Kirksville. It is further agreed that at the election held on the 4th day of April, 1916, there were cast and counted for the contestee more that two hundred votes cast by persons who came to the city of Kirksville from their respective homes and places of residence outside of the city of Kirksville and Adair county, Missouri, and were, before and at the time of leaving their said homes and places of residence to come to Kirksville, residents of the places from whence they came. That said persons came to Kirksville for the sole purpose of becoming students at the American School of Osteopathy, an institution of learning located at said city, with the intention of remaining in said school three years and of then locating at places elsewhere for the practice of osteopathy. And that they did so become students in said school and were such students at the time of said election and time of voting, and had been such students in said school for one year next before said election, and that each of said persons voted in the respective wards in which they lodged during said time. And that said persons have never altered their intentions of leaving the city of Kirksville as soon as their course of study at said school shall have been completed. That the names of the persons who cast the two hundred votes above mentioned are set out in contestant's notice of election contest, filed in this cause. It is further agreed that the said persons so voting at said election were qualified voters at said election if they were, at the time of said election, legal residents of said city of Kirksville, within the meaning of the election laws of the State of Missouri. . . ."

An agreed statement of facts is like a special verdict and it must contain every essential element, without any omission and without doubt or ambiguity to support the judgment. [Gage v. Gates, 62 Mo. 412; Carr v. Lewis Coal Co., 96 Mo. 149, 155, 8 S.W. 907; Hughes v. Moore, 17 Mo.App. 148, 155; Moore v. Henry, 18 Mo.App. 35, 40.]

If the judgment has been rendered against the complaining party and he appeals, he must be supported, unequivocally, on every essential point in his case, by the agreed statement; otherwise, the judgment should be that the defendant, or contestee, will be entitled to a discharge.

Now in this case the students having been allowed to vote by the election officers, are presumed to be legal voters. [Gass v. Evans, 244 Mo. 329, 344, 149 S.W. 628.] It is not enough to destroy such presumption to show that the voter was a student going to school in the city where he voted (Gumm v. Hubbard, 97 Mo. 311, 320, 11 S.W. 61) for the fact that one goes into a city only for the purpose of going to school, does not conclude the question whether he is a legal voter. He may intend to reside at such place. It is a question of intention, not however, determined conclusively by his testimony. [Hall v. Schoenecke, 128 Mo. 661, 666, 31 S.W. 97; Seibold v. Wahl, 159 N.W. 546.] The onus of showing that he was not a qualified voter is on the contestant. [South Mo. Land Co. v. Combs, 53 Mo.App. 298; State to use v. Hudson, 86 Mo.App. 501, 510; Gilliland v. Railroad, 19 Mo.App. 411, 419; Appleman v. Sporting Goods Co., 64 Mo.App. 71.]

In this view of the law, has the contestant, through the agreed statement, clearly shown that the...