Macrae v. Coles
| Decision Date | 29 February 1916 |
| Docket Number | No. 10477.,No. 10478.,10477.,10478. |
| Citation | 183 S.W. 578 |
| Parties | MACRAE v. COLES. STALEY v. WAGNER. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cass County; A. A. Whitsett, Judge.
Election contests by A. Macrae against A. R. Coles and by J. E. Staley against H. R. Wagner. From a judgment of the circuit court, on appeal from the county court, in favor of the contestants in each, the contestees appealed to the Court of Appeals, which transferred the case to the Supreme Court. Judgment affirmed.
D. C. Barnett and W. D. Summers, both of Harrisonville, and A. L. Graves, of Garden City, for appellants. J. S. Brierly and T. N. Haynes, both of Harrisonville, for respondents.
I. At an election for township officers in Dayton township, Cass county, Mo., on the 28th of March, 1911, J. E. Staley and H. R. Wagner were opposing candidates for the office of township collector, and A. Macrae and A. R. Coles were opposing candidates for the office of trustee. There were no other candidates for these two offices. The returns of the election showed on their face that each candidate received 84 votes. Thereupon Staley and Macrae filed separate contests, and gave notice thereof to their respective opponents, alleging as the basis of each suit that 4 votes, specifying the names of the voters, were illegally cast for each of their opponents.
On the same day each of the contestees filed his answer and counter petition and notice of contest, admitting the allegations of the contestants "as to the election held for township office," and all other allegations, except that 4 illegal votes had been cast at the election for the contestees, and then averred that 3 illegal votes, naming the voters, were cast at said election for each of the contestants. The contestees on the same day filed separate motions to dismiss in the separate proceedings against them. After a trial and judgment in the county court on June 9, 1911, the two cases were appealed to the circuit court, and a transcript of the proceedings of the county court was filed in the circuit court on the 31st of August, 1911. Contestees filed similar motions to dismiss in the circuit court, which were overruled.
The two cases were heard together on the original pleadings filed in the county court by the judge of the circuit court without a jury upon admissions of record and the testimony of witness. The verdict and judgment was for contestants, from which the contestees appealed to the Kansas City Court of Appeals, and the case was transferred by that court of its own motion to this court on the ground that it involved "the title to an office under this state." This action of the Kansas City Court of Appeals was correct. State v. Harter, 188 Mo. loc. cit. 527, 87 S. W. 941, et cases cited; State ex rel. v. Meek, 55 Mo. App. 292.
II. It is claimed first that this judgment should be reversed, because of the failure of notice of contest, which answers the purpose of a petition in such proceedings, to allege that township organization prevailed in Cass county, and to prove that fact on the trial. This contention is untenable under the pleadings of the parties and the admissions of record made on the trial of the case. The notice of contest specifically stated it was brought to determine the right of the respective parties in the one case to the office of township trustee, and in the other case to the office of township collector at an election held for the filling of those offices, for the reason that the respective contestants received at such election a majority of the votes cast after excluding the illegal votes of 4 persons. This allegation of the nature of the election and the office contended for was admitted in the answer and counter petition of each contestee. Said answer then averred that the 4 voters whose right to vote was challenged were in fact and truth qualified to cast their votes, "and were residents of Cass county at the time they voted, and had resided in said township 60 days next before said election." Each of said contestees further answered, to wit:
"Wherefore the...
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The State ex rel. Davidson v. Caldwell
... ... inf. Sutton v. Fasse, 189 Mo. 532); to a county ... collector (Sanders v. Lacks, 142 Mo. 255); to a ... township trustee and collector (Macrae v. Coles, 183 ... S.W. 578); to a justice of the peace (Ramsey v ... Huck, 267 Mo. 333); to a grain inspector (State ex ... rel. v. Knott, 207 ... ...
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State v. Caldwell
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