Hancock v. Hubbs

• Decision Date: 18 October 1887
• Citation: 98 N.C. 589,3 S.E. 489
• Court: North Carolina Supreme Court
• Parties: Hancock v. Hubbs.

3 S.E. 489

98 N.C. 589

Hancock

v.Hubbs.

Supreme Court of North Carolina.

October 18, 1887.

Ejections—Action to Contest—Pleading.

It was alleged in a complaint that the whole number of votes cast at an election was a designated number, and that of these the relator received a certain number, (being a majority of the whole number cast,) and that the relator was elected. Beldon demurrer assigning as a ground that it appeared, from certain evidential facts alleged in the complaint, that the relator did not receive a majority of the votes cast, that the petition sufficiently alleged the fact of relator's receiving a majority of the votes cast, and that the allegation was of a constituent fact admitted by the demurrer to be true.

Appeal from superior court, Craven county; Shipp, Judge.

Action to contest an election.

M. D. Stephenson and H. R. Bryan, for plaintiff. W. W. Clark and C. M. Busoee, for defendant.

Merrimon, J. The third ground of demurrer assigned in this case is "that it appeared from the complaint that, according to the return of the precinct board of election from all the precincts in said county, the relator did not receive a majority of the votes cast at said election." The complaint sufficiently alleges a cause of action, but it certainly contains much unnecessary, redundant matter, including evidential facts. This is all surplusage, and to be disregarded as part of the pleading. The demurrer applies only to the constituent and material allegations of the complaint, and, for the purpose of deciding the questions of law presented by the record, these must be accepted as true. It is distinctly alleged that the whole number of votes cast at the election was a number designated; that of these the relator received a number mentioned, (a majority of the whole number;) that other persons received votes less than a majority; and that the relator, having received such majority, was duly elected. This is a constituent allegation to which the demurrer properly applies, so that the complaint does allege that the relator received a "majority of the votes cast at said election, " and the cause of demurrer cannot be sustained. In other respects this case is fully embraced by what was decided in Catling v. Boone, ante, 392; State v. Stimson, infra; and Kilburne v. Patterson, post, 491, (at the present term.) There is no error. Judgment affirmed.