Hodges v. Hodges
| Decision Date | 25 April 1958 |
| Citation | 314 S.W.2d 208 |
| Parties | Clarence E. HODGES, Appellant, v. Joe F. HODGES, Successor to Carl E. Jordan, Sheriff, et al., Appellees. James B. SEARCY, Appellant, v. Joe F. HODGES, Successor to Carl E. Jordan, Sheriff, et al., Appellees. J. T. FLOWERS, Appellant, v. Carl E. JORDAN, Sheriff, et al., Appellees. Tom FRIEDLI, Appellant, v. Carl E. JORDAN, Sheriff, et al., Appellees. |
| Court | Supreme Court of Kentucky |
Leland H. Logan, Bowling Green, Cleon K. Calvert, Pineville, for Clarence E. Hodges and James B. Searcy.
August Winkenhofer, Jr., Bowling Green, Farnsley, Hottell & Stephenson, Louisville, for J. T. Flowers and Tom Friedli.
Parker W. Duncan, Duncan & Huddleston, Bowling Green, for appellees.
These appeals are from a judgment dismissing the actions of appellants contesting the results of local option elections in Bowling Green and in Warren County. The elections were held on September 17, 1957, and resulted in majorities of 200 votes in the city and 1,849 votes in the county in favor of prohibition.
Clarence E. Hodges and James B. Searcy filed separate actions on October 10, 1957, the former contesting the result of the city election and the latter, the county election. J. T. Flowers and Tom Friedli also filed separate actions on October 17, 1957, contesting the city election and county election, respectively. The grounds of contest in all the cases are essentially the same. It is alleged that illegal votes were cast by: (1) persons not signing the comparative signature books; (2) persons actually registered but who should have been purged; (3) persons of improper age; (4) persons residing elsewhere than in Bowling Green or Warren County, or who had not resided the required length of time in the precincts in which they voted; (5) persons physically handicapped who voted elsewhere than in the presence of the election officers; and (6) persons so intimidated and coerced that they failed to vote according to their own free will. In addition, it was alleged that the election officers in certain named precincts failed to take or subscribe to the prescribed oath and ballots were not signed. None of the petitions alleged the names of the illegal voters. There was no allegation that the votes cast by illegal voters would have affected the election results. Each complaint asked a judgment declaring that no valid election was held.
On October 22, 1957, appellees in each case moved to dismiss for failure to state a cause of action and to strike each paragraph for failure to name the alleged illegal voters. On October 24, 1957, the motions were heard together. The motions to dismiss were sustained and the petitions were dismissed for failure to state a cause of action, in that the names of the illegal voters were not alleged. It was further held that the requirements concerning the duties of the election officers and the sanctity of the polling areas, if violated, were directory only and not mandatory.
The appellants requested, and were granted, until November 1, 1957, in which to amend. Amended petitions were tendered on October 31, 1957. Friedli and Flowers incorporated the names of alleged illegal voters in their amended pleadings, while Hodges and Searcy attached their lists as appendices. The amended pleadings also contained the names of the election officers who allegedly had not been properly sworn. Printed cards used at the polls were filed as exhibits. Appellants' motions to file the amended pleadings were overruled and the petitions were dismissed on November 8, 1957. The trial court gave as the reason for denying the filing of the amended petitions that they were attempts to set out new and additional causes of action as prohibited by KRS 122.070.
The Searcy and Hodges cases have been consolidated, as have the Flowers and Friedli cases. The appeals are considered together since common questions are determinative. Two fundamental propositions are presented: (1) whether the petitions stated good causes of action; and (2) whether the amended pleadings shoud have been filed.
The result of a local option election may be contested in the same manner as provided for a contest of a general election under KRS 122.070 through 122.100. KRS 242.120; Widick v. Ralston, 303 Ky. 373, 197 S.W.2d 261, 198 S.W.2d 56. The procedure for the contest of a general election, as provided in KRS 122.070, is in part as follows:
'The petition shall be filed and process issued within thirty days after the day of election; it shall state the grounds of the contest relied on, and no other grounds shall afterwards be relied upon.'
The established rule is that where the casting of ineligible or illegal votes constitutes a ground of contest, the pleader must name in the pleadings those persons whose votes are questioned. Gross v. West, Ky., 283 S.W.2d 358; Stieritz v. Kaufman, 314 Ky. 10, 234 S.W.2d 145; Johnson v. May, 305 Ky. 292, 203 S.W.2d 37; Widick v. Ralston, 303 Ky. 373, 197 S.W.2d 261; 303 Ky. 395, 198 S.W.2d 56; Karloftis v. Helton, 297 Ky. 463, 178 S.W.2d 959, certiorari denied 322 U.S. 713, 64 S.Ct. 1269, 88 L.Ed. 1555; Jackson v. Bolt, 292 Ky. 503, 166 S.W.2d 831; Hogg v. Caudill, 254 Ky. 409, 71 S.W.2d 1020.
Appellants attack this rule and insist that since the adoption of the Civil Rules of Practice and Procedure it should no longer be necessary to name the illegal voter in order to state a good cause of action in an election contest. In support of their position, they cite CR 8.01, providing that 'A pleading * * * shall contain * * * a short and plain statement of the claims showing that the pleader is entitled to relief * * *', and CR 8.05, providing that It is insisted that the established rule is contrary in spirit and substance to the Civil Rules and the contention has support in Lunsford v. Culton, 23 S.W. 946, 15 Ky. Law Rep. 504; Tunks v. Vincent, 106 Ky. 829, 51 S.W. 622; and Weller v. Muenninghoff, 155 Ky. 77, 159 S.W. 632.
In those cases, the grounds of election contests were stated generally and without stating the names of questioned voters. In each of those cases, no objection seems to have been made and the contests were determined without the pleadings having been made more specific. However, this situation was noted and those cases are not authority in support of the liberal rule of pleading contended for by appellants.
The rule that prevailed in such cases was stated in the Lunsford case and quoted in Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753, 762, as:
'A notice of a contest, because of illegal votes being cast for the one party or the other, while it should be required to be made more definite, if objection is made in proper time, is sufficient if parties see proper to make an issue without objection, and proceed to investigate the case.'
The rule also was approved in Siler v. Brown, 215 Ky. 199, 284 S.W. 997, 1001.
In none of the early cases did the Court lose sight of the requirement that the names of the illegal voters should be stated, but the attitude was expressed in the Siler case, thus: '* * * if these parties were content to prepare and try this case in this indefinite form, they had a right to do so.' Each of the cases recognized, as was held in the instant cases, that upon proper objection the names must be alleged and that a failure to allege in proper time renders the pleading defective. The Francis case was quite similar in many aspects to the present cases, and the same rule prevailed then. Thus, the requirement that the illegal voters shall be named has become a fundamental rule controlling the pleadings in an election contest proceeding.
The initial rule of the Civil Rules expressly excludes the '* * * procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict * * *' from the application of the rules, including CR 8. It, therefore, is concluded that the established rule has become so firmly...
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