Laumbach v. Board of County Com'rs of San Miguel County, 5924

• Decision Date: 03 November 1955
• Docket Number: No. 5924,5924
• Citation: 1955 NMSC 96,60 N.M. 226,290 P.2d 1067
• Parties: Joyce LAUMBACH, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY, New Mexico, and Vernon E. Lyster, Tobias G. Flores and Felipe Flores, as members thereof, Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 1067

290 P.2d 1067

60 N.M. 226

Joyce LAUMBACH, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY, New Mexico, and Vernon E. Lyster, Tobias G. Flores and Felipe Flores, as members thereof Respondents-Appellees.

No. 5924.

Supreme Court of New Mexico.

Nov. 3, 1955

Howard F. Houk, Santa Fe, for appellant.

Noble, Spiess & Noble, Las Vegas, Jose E. Armijo, Las Vegas, for appellees.

SADLER, Justice.

The plaintiff as an appellant before this Court complains of a judgment entered against him in an action pending in the district court of San Miguel County, reading as follows:

"Judgment

"The above entitled cause coming on for hearing upon the pleadings herein, and the Court having heard the arguments of counsel thereon, and being now satisfied therewith, Finds:

"1. That the action here is an action for mandamus.

"2. That the legal exceptions and objections set forth in the response are hereby sustained.

"It Is Therefore Ordered And Adjudged that Plaintiff take nothing by his action, and the same is hereby dismissed, to all of which the Plaintiff excepts.

"/s/ Luis E. Armijo

"District Judge"

It will be noted that the cause was heard upon the pleadings consisting of an order to show cause entered upon the allegations of a verified complaint filed by the plaintiff in which it was charged that an election had been held in a certain area of San Miguel County on March 16, 1954, pursuant to L.1947, c. 196, for purpose of determining whether a portion of San Miguel County should be annexed to Harding County; that certain illegal votes had been cast in Precinct 22 in the area proposed to be annexed by 20 or more persons who were not qualified electors therein which votes were wrongfully and fraudulently counted and tallied by the judges of election and that 4 or more persons who were duly qualified electors therein were denied the right to vote.

Like allegations with respect to the rejection of the ballots of certain qualified electors, 26 or more in number in Precinct 65, were made, the refusal to permit them to vote being predicated on alleged defective registration certificates. It was further alleged that if the ballots of duly qualified voters in Precinct 65 so rejected had been or were, counted, tallied and canvassed as required by law, the result of the election, as upon the face of the return as it appeared to be, would be changed and the proposal to annex a portion of San Miguel to Harding County would have carried by a majority of the qualified electors of the affected area.

Having so alleged in his complaint, the plaintiff prayed:

"(1) That defendants be required to count said rejected ballots or to call in the judges of election from said precincts Nos. 22 and 65 of San Miguel County to count the same for their respective precincts and to correct their returns.

"(2) That defendants be required to deduct from said returns from said precincts the votes of non-resident and unqualified and challenged voters, or to call in the judges of election to do so and to correct their returns.

"(3) That the defendants be enjoined from proceeding with said canvass of election, and that they continue the canvass by postponement thereof until they show cause, if any they have, why they should not do as stated in paragraphs 1 and 2 of this prayer."

Upon presentation of the complaint to the court, the trial judge entered an order to show cause, reading, as follows:

"Order

"The above entitled cause having come on to be heard before the Court upon the complaint of the above named plaintiffs, wherein plaintiffs show that an election was held in Precincts Nos. 22 and 65 of San Miguel County, New Mexico, and also in Trementina, Precinct No. 48, in said County, on the 16th day of March, 1954, the question for determination being whether the certain portion of San Miguel County described in the petition filed with the Board of County Commissioners should be annexed to Harding County; and said complaint reciting that more than 24 persons who are and were at said election, being duly qualified voters living in precinct No. 65 and registered as voters therein, were denied their right to vote, their tendered ballots being rejected and that in Precinct No. 22, four or more qualified electors residing in said precinct in San Miguel County and duly registered as voters in said precinct were denied their right to vote, their tendered ballots being rejected; and that in said precinct No. 22 more than 20 non-residents of said precinct were permitted to illegally vote at said election so held as aforesaid; and that if said votes had not been rejected in said precincts and said illegal votes had not been cast and counted, the results of said election as appear upon the returns would have been different, and that even if the rejected ballots had been counted, there would have been a change in said results as shown upon the returns, and that the result of said election would have been for the annexation of said territory to Harding County, New Mexico; and it being further shown by said complaint that the County Commissioners of San Miguel County are about to canvass the returns of said election on this date and will do so and will so canvass said returns as to sustain the rejection of said ballots and not include them in said canvass, and to count and include in said canvass the said alleged ballots illegally cast; and the Court being fully advised in the premises:

"It Is Ordered that the defendants count said rejected ballots in both said precincts 22 and 65, San Miguel County, or that they call in the judges of election from said precincts to correct their returns so as to count said rejected ballots; or that said defendants show cause before the Court on the 1st day of April, 1954, why they should not do so.

"It Is Further Ordered that the defendants be required to deduct from said returns from said precinct 22, the votes of non-resident and unqualified and challenged voters, or that they call in the judges of election to do so, and to correct their returns, or that said defendants show cause, if any they have, before the Court on said 1st day of April, 1954, why they should not either deduct said ballots from said returns or call in the judges of election to do so, and to correct their returns.

"It Is Further Ordered that the defendants, failing to comply with the directions in paragraph 1 and 2 hereof, other than the direction to show cause contained in each of said paragraphs, continue the canvass of said returns by postponement thereof until after the order of Court upon their undertaking to show cause is entered, if they elect to show cause."

In regular course, the defendants, the Board of County Commissioners of San Miguel County and Vernon E. Lyster, Tobias G. Flores and Felipe Flores, as individual members thereof, duly appeared in response to said order to show cause and filed a pleading entitled "Response to Alternative Writ of Mandamus" consisting of ten separate paragraphs of legal exceptions to the sufficiency of the order to show cause, designated and treated by defendants as an "Alternative Writ of Mandamus," closing their response to the "Order" or "Alternative Writ of Mandamus," whichever we finally shall determine it to be, with this language, immediately preceding the prayer, to wit:

"Subject to the above legal exceptions and objections and without waiving any of them going to the legal insufficiency of the Alternative Writ of Mandamus herein, respondents deny each and every allegation set forth in the Alternative Writ of Mandamus."

The plaintiff, having perfected his appeal, filed a pro forma brief in chief pursuant to Supreme Court Rule 15, subd. 5, 1953 Comp. Sec. 21-2-1 (15, subd. 5), calling on appellees (defendants) "to specify and maintain the insufficiency of the plaintiff's pleadings in the District Court."

In the pro forma brief so filed, the plaintiff assigns two errors, as follows:

"1. The Court erred in holding that the action of the plaintiff was an action in mandamus.

"2. The Court erred in sustaining all of the legal exceptions and objections as set forth in defendants' pleading designated as 'Response to Alternative Writ of Mandamus,' which reads as follows, to wit:

" '1. That the Alternative Writ of Mandamus herein fails to state facts sufficient to state a cause of action or upon which the relief sought can be granted.' "

(Paragraphs 2 to 10 of legal exceptions, being a mere enumeration of defects in the writ rendering it insufficient as claimed, are omitted).

The defendants having filed their answer brief responding to the "Pro Forma Brief in Chief" of plaintiff (appellant), the latter's counsel filed their brief entitled "Appellant's Answer Brief." It became, in reality, the brief in chief of appellant (plaintiff)...