Lloyd v. Sullivan

• Decision Date: 21 May 1890
• Parties: LLOYD v. SULLIVAN.
• Court: Montana Supreme Court

24 P. 218

9 Mont. 577

LLOYD v. SULLIVAN.

Supreme Court of Montana

May 21, 1890

Appeal from district court, Silver Bow county; J. J. McHATTON Judge.

Thompson Campbell, for appellant.

M Kirkpatrick and John W. Cotter, for respondent.

BLAKE C.J.

This is an election contest between Lloyd, the appellant, and Sullivan, the respondent, who were candidates for the office of sheriff of the county of Silver Bow at the election held in 1889. The certificates of the nomination of Lloyd by the Republican, and Sullivan by the Democratic, convention were properly filed. The official abstract of the vote cast at the election, according to the canvass which was made October 14 1889, gave Lloyd 3,490, and Sullivan 3,363, votes. There was no other canvass of the vote for these parties, but the county clerk issued the certificate of election to Sullivan.

The statute which governs the procedure and trial of the issues arising in this proceeding provides as follows: "All contests of county *** officers shall be tried in the proper county; and, when an elector shall wish to contest such an election, he shall file with the clerk of the board of county commissioners, within ten days after such person shall have been declared elected, a statement in writing specifying the grounds of contest, verified by affidavit, and such clerk shall issue to the contestant a notice to appear, at time and place specified in the notice, before the district court." Comp. St. div. 5, § 1043. Then follows this section: "Sec. 1044. The district judge, at the time specified in the notice, (and it shall appear by the sheriff's returns that notice has been duly served on the contestor,) shall proceed to try such contest. Each party shall be entitled to subpoenas, and subpoenas duces tecum as in ordinary cases in law; and the district court shall hear and determine in such manner as shall carry into effect the expressed will of a majority of the legal voters, as indicated by their votes for such office, not regarding technicalities, or error in spelling the name of any candidate for such office; and the clerk of said court shall issue a certificate to the person declared to be elected by said court, which shall be presumptive evidence of the right of said person to hold such office, and he shall be entitled to enter upon and hold said office until such decision shall be reversed on appeal." In pursuance of these statutory requirements, the proper notices were filed issued, and served by Lloyd, an answer was made by Sullivan to the statement of contest, and a replication was filed by Lloyd.

It will be necessary to observe carefully some of the proceedings upon the trial; and, to prevent any misunderstanding thereon, they will be recited in the language of the court below. The following judgment was entered February 24, 1890: "This cause came on regularly for trial on the 11th day of February, 1890, before the court sitting without a jury; *** whereupon witnesses were examined, and other evidence introduced, on the part of the contestant and respondent respectively, and the evidence being closed, and the argument of counsel heard, the cause was submitted to the court for consideration and decision; and, after due deliberation thereon, the court delivers its findings and decision in writing, which is filed, and orders that judgment be rendered in accordance therewith. Wherefore, by reason of the law and the findings aforesaid, it is by the court ordered, declared, and adjudged that at the general election held in the county of Silver Bow on the first Tuesday, being the first day, of October, 1889, the respondent, Eugene D. Sullivan, received a majority of all the legal votes cast in said county at said election for the office of sheriff of said county of Silver Bow, and was and is duly elected to said office. ***" The findings of fact, which are 15 in number, contain this statement: "The evidence in the above-entitled cause having been fully heard, together with the argument of counsel for the respective parties, and the same having been submitted to the court for decision, the court, in response to the written request of the parties, makes the following findings of fact from the evidence, and its conclusions of law thereon." Thereupon Lloyd filed a notice of his intention "to move the court to vacate and set aside the decision of the court rendered in the above cause, and to grant a new trial of said cause." The statement, which was "approved and allowed" March 31, 1890, by the judge of the court below, contains the testimony which was introduced upon the trial, the exceptions which were saved by the appellant, and the specification of the "particulars in which the evidence is insufficient to sustain the findings and decision of the court." Upon April 3, 1890, "the motion for new trial herein, heretofore taken under advisement, is by the court overruled, and to which ruling of the court plaintiff, by counsel, duly excepts." The notice of appeal states that "the contestant in the above-entitled action hereby appeals to the supreme court of the state of Montana from the order of the district court of the second judicial district of the state of Montana overruling contestant's motion for a new trial of said action, and refusing a new trial thereof, made and entered in said court on the 3d day of April, A. D. 1890.

At the threshold of this inquiry the respondent contends that the motion for a new trial does not lie, and that the court has no jurisdiction of the appeal. The statutes and constitutions of the states vary materially, and it must be admitted that the decisions are not harmonious, upon this question. The law of this state, which has been cited, evidently contemplates that the judgment of the district court shall not be final for its terms expressly limit the right of "the person declared to be elected" to "enter upon and hold said office until such decision shall be reversed on appeal." The construction sought to be enforced by the respondent renders this provision nugatory, and deprives the aggrieved party of a substantial right. In Payne v. Davis, 2 Mont. 382, the value of the property involved in the controversy was $50. The act of the legislative assembly declared that this court shall have jurisdiction in civil cases "where the amount in dispute exceeds one hundred dollars." Upon the motion of the respondent to dismiss the appeal, we held that "statutes must be so construed as to maintain the right of appeal if the established rules of interpretation are not violated," and adjudged that the restriction was inconsistent with the organic act of the territory, which allowed appeals "in all cases from the final decisions" of the district court, and therefore void. The case was then heard and determined upon its merits. Subsequently the statute concerning this subject was amended, and now provides as follows: "The supreme court shall have appellate jurisdiction in all cases tried in the district courts." Code Civil Proc. § 697. Let us consider some sections of the Code of Civil Procedure: "A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this act." Section 418. "An appeal may be taken to the supreme court from the district courts in the following cases: First, from a final judgment, or any part thereof, entered in an action or special proceeding commenced in those courts, or brought into those courts from other courts; second, from an order granting or refusing a new trial." Section 444. The constitution declares that "the appellate jurisdiction of the supreme court shall extend to all cases at law and in equity," (article 8, § 3;) and it is claimed by the respondent that an election contest is not included by the word "cases," which has a technical meaning. This construction would confine the jurisdiction of this court within narrow bounds. But it is obvious that full effect has not been given to every part of the instrument, which in this matter is its own interpreter. The eleventh section uses this language in defining the jurisdiction of the district court: "The district court shall have original jurisdiction in all cases at law and in equity." Then follows the phrase, "including all cases," which are enumerated, such as "proceedings in insolvency, *** actions to prevent or abate a nuisance, *** all matters of probate, *** actions for divorce and for annulment of marriage, and for all such special actions and proceedings as are not otherwise provided for." The framers of the constitution have plainly ignored the familiar signification which is attached in the Reports to "cases at law" and "cases in equity." This view is confirmed by this section: "There shall be but one form of civil action, and law and equity shall be administered in the same action." Article 8, § 28. The fifteenth section of the same article is of vital force in this discussion: "Writs of error and appeals shall be allowed from the decisions of the said district courts under such regulations as may be prescribed by law." Construing these provisions together, it is clear that the appellate jurisdiction of this court extends to all cases, actions, and proceedings which have been finally decided in the district courts. Our jurisdiction is, in substance, similar to that of the supreme court under the territorial government, and this objection could have been urged with equal power before the transition to statehood. The case of Heyfron v. Mahony, ante, 93, which was an election contest under the statute supra for the same office, was filed July 8, 1889, in the supreme court of the territory, and was upon the docket during three terms. The able and learned counsel for the respondent never questioned the jurisdiction of ...