Martin v. Youngblood

• Decision Date: 29 April 1937
• Docket Number: 26608.
• Parties: MARTIN v. YOUNGBLOOD.
• Court: Indiana Supreme Court

7 N.E.2d 997

211 Ind. 647

MARTIN v. YOUNGBLOOD.

No. 26608.

Supreme Court of Indiana

April 29, 1937

Appeal from Warrick Circuit Court; Robert D. Markel, Special judge.

Thomas F. O'Mara, of Terre Haute, James F. Ensle, of Evansville Sanford Trippet, of Princeton, and Wm. D. Hardy, of Evansville, for appellant.

Henning & Youngblood, of Evansville, Roscoe Kipes and Ora A Davis, both of Boonville, and Fred C. Ganse, of Indianapolis for appellee.

PER CURIAM.

This was an action by the appellant against appellee, to contest the election of judge of the Second judicial circuit of the state of Indiana held on November 6, 1934, and demanding a recount as provided by chapter 242, Acts 1933. Appellant and appellee were the only candidates for the office.

The first question to determine is raised by appellee. He contends that chapter 242, Acts 1933, p. 1098 gives the right of contest to district, county, township, and municipal offices, but does not apply to a circuit office, and hence the court has no jurisdiction to determine the questions here presented. This question was presented by a motion to dismiss in the recent case of Conley v. Hile (1935) 207 Ind. 488, 193 N.E. 95, 100. We quote the following from that opinion:

'Appellant moved to dismiss the action on the ground that a judge of a superior court is not a county, township, or municipal officer, and that, therefore, the circuit court had no jurisdiction to try the case. The statute concerning elections, section 7597 et seq., Burns' Ann.St.1926, provides in section 7612 [section 29-2201 et seq., Burns' 1933, section 7413, Baldwin's 1934]: 'All contests for district and circuit offices, not otherwise provided in this act, shall be tried in the county giving the largest vote for such office at such election.'

'There is a prior provision for contesting the seat of the person elected to the house of representatives, but there is no other provision concerning judges or prosecuting attorneys, and the section must be deemed to apply to a contest of the office of judge of the circuit or superior courts and of prosecuting attorneys. While the question was not raised, this court recognized such to be the rule in the case of Williams v. Bell (1915) 184 Ind. 156, 110 N.E. 753.'

This same provision in substantially the same language is found in section 3 of chapter 242, Acts 1933, p. 1099. Upon authority of the above case, we conclude that the trial court did have jurisdiction to hear and determine the case.

Appellant's first ground of contest was based upon the first cause of contest mentioned in the statute, being section 2, chapter 242, Acts 1933, p. 1098. This section provides that:

'Any election, the contest of which is provided for in this act, may be contested for any of the following causes:

'First. For irregularity or malconduct of any member or officer of any precinct election board or the proper board of judges or canvassers.'

Appellant's first paragraph of contest alleged the following:

'That this contestor now desires to and does contest said election of said contestee, Union W. Youngblood, to said office of Judge of the Second Judicial Circuit, in the State of Indiana, on the following grounds and for the following reasons, each separately and severally stated:

'1. For irregularity and malconduct of the members and officials of the precinct election boards, boards of judges and canvassers in the following precincts in Warrick County, State of Indiana, to-wit * * *' (here follows a list of precincts in Warrick county, followed by an allegation that the above are all the precincts in Warrick county, and also stating that in certain named precincts paper ballots only were used, and in others voting machines only were used).

The petition then proceeded with the following allegations.

'That said irregularity and malconduct was in these things, to-wit: that in said precincts they denied to duly qualified voters the rights and privilege of voting at said election and that said voters would have cast a ballot for this contestor if permitted to vote in said election, this contestor is informed and believes, and that a sufficient number of said duly qualified voters would have cast a vote for this contestor in said election to have elected him Judge of the Second Judicial Circuit, in the State of Indiana, if they had been permitted to vote in said election and had not been denied their right and privilege of casting a ballot for this contestor in said election.'

To this first ground of contest appellee filed a motion to make more specific, to the effect, 'That the contestor be required to state in said ground of contest in said petition precisely and definitely what the Election Boards and members thereof in each of the precincts therein set forth did or said that denied to any duly qualified voter the right and privilege of voting at said election mentioned in said petition.'

This motion was sustained by the court and is one of the assigned errors on this appeal.

The statute provides, as the first ground for contest, irregularity and malconduct of any member or officer of any precinct election board. This was made the first ground of contest of appellee. He specifies the particular irregularity and malconduct of the election officers upon which he relies, by alleging that they denied duly qualified voters the privilege and right to vote at said election. This was the statement of the issuable fact. Had appellant complied with the court's order to state, precisely what the officers or members of the election board said or did in each instance, that denied such voters their right to vote he would have pleaded the evidence to support the allegation contained in the petition. Suppose appellant had alleged in his first specification for a contest that in certain named precincts certain named election officials drew a loaded revolver on certain named qualified legal voters when they presented themselves at the polls for the purpose of casting their ballot, and said to such voter that he would shoot him or do violence to him if he attempted to vote. Under such circumstances, a motion to strike out such allegations would have been proper as being allegations of evidentiary facts, and not the allegations of issuable facts. Such facts would be very proper to introduce at the trial. How could appellant prove his allegation that qualified legal voters were denied their right to vote, unless he placed witnesses on the stand and had them relate the specific things done or what the election officers said to them at the time. In other words, had appellant alleged in his petition the things required by appellee's motion, he would have pleaded the very facts that would have ultimately appeared in evidence.

It has been repeatedly held that such is not necessary. In Petree v. Fielder (1891) 3 Ind.App. 127, 29 N.E. 271, it was held that evidentiary matter in a pleading is mere surplusage. In Indiana Natural Gas & Oil Co. v. Wilhelm (1908) 44 Ind.App. 100, 86 N.E. 86, it was said that only the ultimate facts to be proved need be alleged in a complaint. Issuable facts and not the evidence should be pleaded. Singer Sewing Machine Co. v. Phipps (1911) 49 Ind.App. 116, 94 N.E. 793. So as a matter of pleading the trial court was clearly in error. But granting the trial court was in error in requiring appellant to make said first paragraph of his petition more specific, and in striking out said first paragraph upon refusal by appellant to comply with said order, was appellant harmed thereby? Had appellee raised no question as to the sufficiency of the pleading, and had appellant introduced evidence upon that issue, and suppose appellant had shown the allegations to be true, could the court in an election contest case count votes in favor of either party that were never cast? Certainly not. In a contest election case the ballots actually cast determines the result of an election, and not the ballots that were never cast, or ballots that might have been voted but were not, even though the malconduct of some or all of the members of the election board was responsible for the failure of such qualified voters not voting. Consequently, appellant was not harmed by the action of the court in striking said first specification from the record, inasmuch as it stated no valid ground for contest.

Appellant contends that the court erred in refusing to allow him to file his amended petition of contest herein. The objection made by appellee to the filing of said amended petition was that the first, third, and fourth ground of contest set out in the amended petition was identical with the first, third, and fourth specification set out in the original petition, but the second ground alleged in the amended petition was not an amended second specification, but stated a new ground of contest not alleged in the original...