Gossard v. Vawter

• Decision Date: 12 June 1939
• Docket Number: 27199.
• Parties: GOSSARD v. VAWTER.
• Court: Indiana Supreme Court

21 N.E.2d 416

215 Ind. 581

GOSSARD v. VAWTER.

No. 27199.

Supreme Court of Indiana

June 12, 1939

Appeal from Tipton Circuit Court; Frank B. Russell, Judge.

Ryan & Ryan and Robison & Robison, all of Frankfort, and Cleon Wade Mount, of Tipton, for appellant.

Rochford & Rochford, of Indianapolis, for appellee.

SHAKE Judge.

Appellant and appellee were candidates for the office of township trustee of Jefferson Township, Tipton County, at the general election held on November 8, 1938. The appellee was declared and certified to have been elected, and on November 14th the appellant filed in the circuit court of the county his petition to contest said election and for a recount of the votes. The body of the appellant's petition began as follows: 'Comes now Garrett W. Gossard contestor in the above captioned proceedings, who, being first duly sworn, upon his oath says:' There followed the substantive allegations upon which the proceeding was based. The petition was signed by the appellant and beneath his signature appeared the following:

'Subscribed and sworn to before me this 12th day of November, 1938.

'________ Seal

'Notary Public

'My commission expires January First, 1939.'

On November 22nd the appellee filed a motion to reject and strike appellant's petition from the files and to abate the action, upon the ground that the petition was not verified by the contestor, as required by law. On November 30th appellant filed an answer to the motion to strike and a petition to complete the jurat on his original petition, supported by the affidavit of the notary before whom the original petition was subscribed. In the affidavit said notary asked permission to complete the jurat by signing same as of November 12th. Thereafter, on December 12th appellant filed an amended petition to complete the jurat, in which he set out that he did, in fact, sign said original petition and did swear to the same before said notary on November 12th, the form of oath administered being set out in full; that said notary placed his seal on said original petition at said time, but that by oversight and inadvertence he failed to attach his signature to said jurat. The matter came on for hearing before the court on December 14th, at which time the appellant asked leave to offer evidence in support of his amended petition to complete the jurat. This leave was denied, and the court thereupon sustained appellee's motion to reject and strike out the petition, and rendered judgment against the appellant. Error is assigned upon the action of the court in the overruling of appellant's amended petition to complete the jurat; the denial of his motion asking leave to submit evidence in support thereof; and in the sustaining of the motion of appellee to reject and strike out the original petition for contest and recount.

Appellant's petition to contest and for a recount was filed pursuant to the provisions of Section 29-2304, Burns' Supp. 1938, which requires that: '* * * Such petition shall be verified by the contestor and shall be filed not more than ten (10) days after the Thursday next following such election.'

It has been held that since an action of this character depends upon statutory affirmance, he who invokes it must, without the aid of any intendment, bring himself strictly within its spirit as well as its letter. Martin v. Schulte, 1932, 204 Ind. 431, 182 N.E. 703. In the case of Slinkard v. Hunter, 1936, 209 Ind. 475, pages 478, 479, 199 N.E. 560, page 562, this court said:

'It is conceded that the bond filed with the petition for contest was insufficient. The bond thereafter filed was not filed with the petition, and was filed two days after the time permitted by the statute. It follows that no jurisdiction was vested in the court to appoint a recount commission. * * * Since a proper undertaking was not filed with the petition for a contest, nor within the time provided by statute, appellee's motion to dismiss the petition for a recount was properly sustained.

* * *

* * *

'The public has an interest in the speedy determination of controversies affecting elections, and provisions of the statute limiting the time within which steps may be taken are universally regarded as mandatory, and unless they are strictly complied with the court is without jurisdiction of the subject-matter.'

The courts of this country are not entirely agreed as to the effect of the omission of a jurat upon an affidavit, but according to the majority view such omission is not fatal to the validity of the affidavit, so long as it appears, either from the instrument itself or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. 1 Am.Jur. p. 946; 13 L.R.A. 556 Ann.; 1 A.L.R. 1571 Ann.; 116 A.L.R. 587 Ann. If the general rule, as supported by the weight of authority, is...