Jones v. State ex rel. Smock
| Decision Date | 22 October 1928 |
| Docket Number | 25,673 |
| Citation | 163 N.E. 260,200 Ind. 328 |
| Parties | Jones v. State of Indiana, ex rel. Smock et al |
| Court | Indiana Supreme Court |
1. PLEADING---Striking Out---Answers to Interrogatories.---There was no error in striking out a defendant's answer of general denial where his answers to interrogatories propounded under 409 Burns 1926, showed that, in substance he admitted all the allegations of the complaint, although in one answer, he disclaimed any knowledge of the fact called for by the interrogatory, and, standing alone, might have left a question of fact undetermined on which an issue might be formed by an answer of general denial. p. 331.
2. MANDAMUS---To Place Name on Ballot as Candidate---Demand on Individual Defendant Unnecessary.---In an action of mandate to have plaintiff's name placed on the ballot as a candidate at a general election, in which the successful contestant before the board of county commissioners was made a party defendant, it was unnecessary to show that a demand had been made on such defendant, as he could not place plaintiff's name on the ballot nor require the board of election commissioners to do so, and consequently no relief prayed for could be gained by a judgment of mandate against said defendant. p. 331.
3. PLEADING---Answer Shown to be Sham Pleading---Proper Practice.---When a defendant's answers to interrogatories, propounded under 409 Burns 1926, show that he admits plaintiff's cause of action as stated in his complaint, there is nothing left upon which such defendant could base a general denial, and judgment was properly rendered for plaintiff, the practice being similar to that when the party against whom a verdict has been rendered is entitled to judgment on the pleadings (617 Burns 1926). p 332.
4. ELECTIONS---Contest---Trial---Limitation of Time.---Under the express provisions of 7615 Burns 1926, a board of county commissioners, sitting as a board to hear an election contest, cannot continue the trial to exceed twenty days "altogether," and this fixes the life of the tribunal as twenty days and no longer, and a finding made or judgment rendered thereafter is of no force or effect. p. 333.
5. VENUE---Change---No Issue of Fact---Motion Properly Denied.---Where a defendant's answer of general denial was stricken out because his answers to interrogatories, propounded under 409 Burns 1926, admitted all the allegations of the complaint, no question of fact was left for trial, and the only matter before the court was a question of law; hence, the court properly denied a motion for a change of venue. p. 333.
From Vigo Circuit Court; Miller Davis, Special Judge.
Action of mandate on the relation of George E. Smock against the board of election commissioners of Vigo County and others, in which Jacob L. Jones was made a party defendant. From a judgment for relator, said defendant Jones appeals.
Affirmed.
Blankenbaker & Hall, for appellant.
B. F. Small and Hamill, Hickey & Harris, for appellees.
This is an action for mandate, § 1244 Burns 1926. Appellee Smock brought this action against appellees Hendrich, Stalnaker and O'Brien, as members of the board of election commissioners of Vigo County, Indiana, and as the board of election commissioners of said 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 twenty days after the trial of the contest began. § 7615 Burns 1926.
Concerning the action of the court striking appellant's...
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