Jones v. State ex rel. Smock, 25673.

• Decision Date: 22 October 1928
• Docket Number: No. 25673.,25673.
• Citation: 163 N.E. 260,200 Ind. 328
• Parties: JONES v. STATE ex rel. SMOCK et al.
• Court: Indiana Supreme Court

200 Ind. 328

163 N.E. 260

JONES

v.STATE ex rel. SMOCK et al.

No. 25673.

Supreme Court of Indiana.

Oct. 22, 1928.

Appeal from Vigo Circuit Court; Miller Davis, Special Judge.

Action for mandate by the State, on the relation of George E. Smock, against William E. Hendrich and others, as members of the Board of Election Commissioners of Vigo County, and others, in which Jacob Jones was made a party defendant. From a judgment for relator, the defendant last named appeals. Affirmed.Blankenbaker & Hall, of Terre Haute, for appellant.

B. F. Small and Hamill, Hickey & Harris, all of Terre Haute, for appellee Smock.

Walker & Hilleary, of Terre Haute, for appellee Board of Election Com'rs.

PER CURIAM.

This is an action for mandate. Burns' 1926, § 1244. Appellee Smock brought this action against appellees Hendrich, Stalnaker, and O'Brien, as members of the board of election commissioners of Vigo county, Ind., and as the board of election commissioners of this county, praying for a judgment in mandate against the board to place his name upon the Republican ticket as a candidate for the office of county commissioner upon the official ballot which was to be voted at the general election in November, 1928. Thereafter, upon request by others except appellee Smock, Jacob L. Jones was made a party defendant in the action. After appellant Jones was ordered by the court to be made a party defendant in the action, appellee Smock filed with the court interrogatories in two sets, one to be answered by appellant Jones, and the other to be answered by appellees, the members of the board of election commissioners. Appellant Jones filed his answers to the interrogatories submitted for him to answer, and appellees, the members of the board of election commissioners, filed answers to the interrogatories submitted to them to answer. The interrogatories submitted to appellant Jones covered every material allegation in the complaint filed by appellee Smock. Thereafter appellant Jones filed his separate answer of general denial. Appellee Smock moved that the answer in general denial be stricken from the files in this case, for the reason that every material allegation of his complaint had been answered by appellant Jones in the affirmative, and that the answer in general denial would be in diametric opposition to the answers made by appellant Jones. Thereupon the court made its finding against appellant Jones and in favor of appellee Smock, and rendered its judgment of mandate, which required the board of election commissioners to have printed upon the Republican ticket of the official ballot the name of appellee Smock for the office of county commissioner in Vigo county.

The questions presented for determination here are: (1) Did the court commit error in striking appellant's answer in general denial from the files? and (2) Was the finding of the board of county commissioners, sitting as a tribunal to try an election contest, sufficient to support the judgment or order here in question, that appellant Jones had received the highest number of votes, and, further, if it did, was the purported judgment valid, having been made more than 20 days after the trial of the contest began? Burns' 1926, § 7615.

[1] Concerning the action of the court striking appellant's answer in general denial from the files, it is contended that at least one of the answers to one of the interrogatories was such that an issue might be formed by an answer in general denial which would require a trial upon a question of fact. Appellant Jones answered the question whether or not a demand had been made by the plaintiff (appellee Smock) upon the board of election commissioners to place his name upon the Republican ticket of the official ballot as a candidate for that office. The answer by appellant Jones was that he did not know. The succeeding question to Jones was, Did the board of election commissioners refuse to place the name of appellee Smock upon such official ballot as above indicated? to which he answered that they had so refused. It is the opinion of the court that, notwithstanding his reply that he did not know whether a demand had been made, the answer made to the succeeding question that the appellee board had refused to place the name of appellee Smock upon the official ballot, is sufficient to sustain the action, and is sufficient to amount to a demand by Smock upon the board.

It appears in the record by the questions submitted to the appellee board, whether a demand had been made...