Gossard v. Vawter, 27199.

Citation215 Ind. 581, 21 N.E.2d 416
Case DateJune 12, 1939
CourtSupreme Court of Indiana

215 Ind. 581
21 N.E.2d 416


No. 27199.

Supreme Court of Indiana.

June 12, 1939.

Election contest by Garrett W. Gossard against Ernest Vawter. From an adverse judgment, contestant appeals.


[21 N.E.2d 416]

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

[21 N.E.2d 417]

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...

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18 cases
  • Demma v. Forbes Lumber Co., 19506
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Marzo 1962
    ......849, 103 N.E. 843; Slinkard v. Hunter, 1936, 209 Ind. 475, 479, 199 N.E. 560; Gossard v. Vawter, . Page 255. 1939, 215 Ind. 581, 585, 21 N.E.2d 416; Ettinger v. Robbins, 1945, 223 Ind. ......
  • State ex rel. Ayer v. Ewing, 28878
    • United States
    • Indiana Supreme Court of Indiana
    • 20 Junio 1952
    ......118, 95 N.E.2d 829; Slinkard v. Hunter, 1936, 209 Ind. 475, 479, 199 N.E. 560; Gossard v. Vawter, 1939, 215 Ind. 581, 583, 21 N.E.2d 416. .         We are safe in saying that in ......
  • Bigler v. State, 84A01-9110-CR-311
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Octubre 1992
    ...itself or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. Gossard v. Vawter (1939), 215 Ind. 581, 584, 21 N.E.2d 416, At the hearing on Bigler's motion to suppress, the issuing magistrate and affiants testified that the magistrate swore th......
  • Indiana Civil Rights Com'n v. City of Muncie, 2-1082A350
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1984
    ......Hodges v. Kosciusko Circuit, (1980) Ind., 402 N.E.2d 1231, at 1233; Gossard v. Vawter, (1939) 215 Ind. 581, at 584-586, 21 N.E.2d 416, at 417.         In Bader v. ......
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