Hyde v. Bryan

• Decision Date: 09 August 1918
• Docket Number: No. 2161.,2161.
• Citation: 174 P. 419,24 N.M. 457
• Parties: HYDEv.BRYAN et al.
• Court: New Mexico Supreme Court

24 N.M. 457

174 P. 419

HYDE

v.BRYAN et al.

No. 2161.

Supreme Court of New Mexico.

Aug. 9, 1918.

Syllabus by the Court.

The face of a pleading controls its character, and not the name given to it by the pleader.

Every pleading must be, under our practice, subscribed by the party making the same, or his attorney, and, when any pleading is verified, every subsequent pleading, except a demurrer, must be verified.

Where a verification is required, as is the case under our statute, and is omitted, the pleading may be stricken out or judgment may be had on the pleadings.

A defendant, by answering over, upon demurrer overruled, waives all objections to the petition of the plaintiff, except to the jurisdiction of the court and the failure of petition to state a cause of action.

Additional Syllabus by Editorial Staff.

Code 1915, § 1999, providing for an examination of ballots by the board of county commissioners in case of a contest, does not violate Const. art. 7, § 1, requiring the enactment of laws securing the secrecy of the ballot.

Appeal from District Court, Lincoln County; Medler, Judge.

Suit for injunction by C. Walker Hyde against John L. Bryan and others. Judgment for plaintiff on the pleadings for default of answer, and defendants appeal. Reversed, and cause remanded for further proceedings.

Pending an election contest case in the district court of Lincoln county between Henry M. Corn, contestant, and C. Walker Hyde, contestee, involving the office of sheriff, the contestee in that suit filed his petition in the case at bar to prevent the contestant, Corn, from having certain ballot boxes opened in the presence of the county commissioners for the purpose of showing alleged illegal votes cast against him. A demurrer to the complaint was interposed and subsequently overruled on the 31st day of May, 1917, and the injunction continued in effect until the further order of the court. After certain testimony was taken in the contest case, a copy of which is incorporated in the record in this case. On July 20, 1917, a motion to dissolve the temporary injunction was filed by respondents, and on the following day the plaintiff filed a motion to strike respondents' motion to dissolve, in which he recites the history of the proceedings in the case prior to that time, and urged as a ground for the motion that the motion to dissolve was an answer and not a motion, and had not been filed within 20 days, as required by the statute. This motion was denied. An order of the court was then made overruling the motion to dissolve without prejudice, the court announcing that he would hear any further motion for dissolution on the following day. The same day (July 30, 1917) a motion for judgment was filed by complainant on the ground that no plea or answer had been filed by respondents. On the following day defendants interposed a motion ore tenus, moving the court to strike the motion of the plaintiff for judgment on the ground that the court, upon the overruling of the motion for dissolution of the injunction on the preceding day, had given to the respondents until 9 o'clock on the following morning in which to file another motion setting up other facts and asking for the dissolution of the injunction. At the same time there was also filed a second motion to dissolve the injunction. This motion set up the proceedings taken in the contest case touching the qualifications of certain voters to vote in the precincts in question, alleging that a sufficient number of the voters named in contestant's pleadings in cause No. 2,571 have been shown to have voted illegally at the two ballot boxes in question to have changed the result of the election. Among other matters not necessary to refer to, the motion contained a general denial of all allegations of the complaint not admitted.

The trial court held that the question of the qualification of these voters should have been raised by an answer to the complaint and the evidence taken in this case, and held that, where an injunction is granted until answer and further order, it is never dissolved until the answer comes in; citing 10 Ency. P. & P. 1035. The court overruled the motion of the respondents to dissolve the injunction. Apparently because no time was asked within which to file an answer, the court granted the plaintiff's motion for a judgment upon the pleadings for default of answer, to which ruling of the court the respondents excepted, and from which they have prayed this appeal.

Where a verification is required, as is the case under New Mexico statute, and is omitted, judgment may be had on the pleadings.

G. W. Prichard, of Santa Fé, and Spence & Merchant, of Carrizozo, for appellants.

Geo. B. Barber, of Carrizozo, for appellee.

HANNA, C. J.

The principal point raised by appellants here (respondents below) is that the injunction granted in the trial court operated to deprive the defendant Corn from having the benefit, in his contest case, of section 1999, Code 1915, providing for the inspection of ballots by contesting parties in contested elections, a question, however, which is dependent upon the correctness of the trial court's disposition of the case upon the pleadings. Appellants urge that their respective motions to dissolve the injunction should have been treated and considered as answers, pointing out that in each of the motions the respondents denied and controverted each and every allegation contained in the complaint, save and except those allegations therein admitted to be true.

[1][2][3] It is urged that the face of a pleading controls its character, and not the name given to it by the pleader, and that our Code prescribes no form of answer further than to require that it contain a denial of the material allegations of the complaint, with the privilege, of course, of setting up new matter, it being contended that this is done in the motions to dissolve referred to. Authorities are cited in support of this contention, and we apprehend that the contention is correct. Cleveland, C., C. & St. L. Ry. Co. v. Rudy, 173 Ind. 181, 89 N. E. 951. It must be borne in mind, however, that the court gave judgment upon the pleadings upon the theory that every pleading must be, under our practice, subscribed by the party making same, or his attorney, and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also; citing section 4123, Code 1915. It has been held that where a verification is required, as is the case under our statute, and is omitted, the pleading may be stricken out or judgment may be had on the pleadings. Hearst v. Hart, 128 Cal. 327, 60 Pac. 846. In the case cited it was contended that the proper course would have been to...