McClendon v. McKeown, 5-1848

• Decision Date: 04 May 1959
• Docket Number: No. 5-1848,5-1848
• Citation: 323 S.W.2d 542,230 Ark. 521
• Parties: Kern McCLENDON, Appellant, v. Lloyd McKEOWN et al., Appellees.
• Court: Arkansas Supreme Court

Page 542

323 S.W.2d 542

230 Ark. 521

Kern McCLENDON, Appellant, v. Lloyd McKEOWN et al., Appellees.

No. 5-1848.

Supreme Court of Arkansas.

May 4, 1959.

Robert B. Gibson, Dermott, for appellant.

Ed Trice and William H. Drew, Lake Village, for appellees.

McFADDIN, Justice.

The question to be decided is whether appellant's complaint stated a cause of action. In the Democratic Primary Election on August 12, 1958 appellant and appellee were rival candidates--and the only candidates--for the nomination of Mayor of Dermott. On the face of the returns, the vote was 509 for appellee, McKeown, and 497 for appellant, McClendon. On August 28, 1958 McClendon filed his petition ¹ in the Chicot Circuit Court (under § 3-245 Ark.Stats.) to contest the nomination of McKeown. The Circuit Court sustained a demurrer and dismissed McClendon's complaint; and this appeal ensued.

We have a number of cases concerning the sufficiency of allegations of a complaint in an election contest. Some cases discussing this and allied questions in election contests are: Gunter v. Fletcher, 217 Ark. 800, 233 S.W.2d 242; Wilson v. Anderson, 193 Ark. 799, 103 S.W.2d 63; Hailey v. Barker, 193 Ark. 101, 97 S.W.2d 923; Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409; Hill v. Williams, 165 Ark. 421, 264 S.W. 964; Wassell v. Sprick, 208 Ark. 243, 185 S.W.2d 939; Robinson v. Knowlton, 183 Ark. 1127, 40 S.W.2d 450; Crawford v. Harmon, 149 Ark. 343, 232 S.W. 427; and Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30.

In Gunter v. Fletcher (supra), the complaint alleged that with the illegal votes discarded the correct vote would have been: for Gunter, 3371; for Fletcher, 3160. We held that a demurrer should not have been sustained to the complaint since the above allegation showed that Gunter claimed to have received a majority of the legal votes cast. But a study of the original transcript in that case discloses that Gunter in his complaint had: (1) given the name of each person alleged to have cast an illegal ballot and the township in which each had voted; (2) stated the name of each person whom it was alleged had voted without poll tax; and (3) listed the name of each of the other voters casting ballots claimed to be illegal. There were several hundred so claimed; and after all of the above allegations, the complaint had concluded with the paragraph numbered 12 which is copied in our opinion. Thus it will be seen that in Gunter v. Fletcher the contestant gave detailed information of the name and voting place of each person alleged to have cast an illegal ballot.

In Ferguson v. Montgomery (supra), and in Crawford v. Harmon (supra), we pointed out that when challenged ballots were to be discarded--as distinguished from fraud involving the entire box--it was essential that the names of the challenged voters should be given. In sustaining a demurrer to a paragraph in a complaint we said, in Crawford v. Harmon (supra) [149 Ark. 343, 232 S.W. 428]: 'The paragraph contained no allegations with respect to the names of any of the persons who are alleged to have cast the unsigned ballots'.

With the foregoing as the understanding of our cases, we come to the complaint in the case at bar. McClendon never alleged how many legal votes he claimed that each candidate received: he merely stated now many votes the Democratic Central Committee certified. McClendon alleged that he offered proof to the Democratic Central Committee that twenty-three illegal votes had been cast in the Mayor's race and that the Committee refused to receive such evidence; but McClendon has never given the name of any person alleged to have cast an illegal ballot. ² He has never stated as a fact that he received a majority of all the legal votes cast in the election; he has merely stated that if the ballot boxes were opened and the alleged illegal ballots cancelled and a retabulation made, he '* * * verily believes he will have received more votes than L. O. McKeown'. McClendon has never named any of the persons whose votes he claims to be illegal; and in his brief in this Court he says:

'The appellant did not call the names of the illegal votes or voters because it is contended it would not have been to his best interest to have voluntarily given the opoosition his proof at the time of filing his petition. However, the appellant, in his petition before the Committee and the Circuit Court, stated that he would call and list the names of the illegal voters when called upon by the Court.'

It was not the duty of the Circuit Court on its own initiative to ask McClendon to name the persons alleged to have cast illegal ballots: it was McClendon's responsibility to allege a cause of action. His continued failure to name the persons casting the alleged illegal ballots ³ justified the Circuit Court in sustaining the demurrer as such, rather than merely treating it as a motion to make the complaint more definite and certain. In sustaining the demurrer and dismissing the complaint, the learned Circuit Judge delivered a written opinion, which has proved most helpful to this Court; and we copy and adopt as our own excerpts from the said opinion of the Circuit Judge:

'An election contest is an adversary proceeding between a candidate not certified and the nominee who was certified, if there were only two candidates for the office involved. 'The pleadings, in an election contest case, should be sufficiently specific to give reasonable information as to the grounds of contest.' Robinson v. Knowlton, 183 Ark. 1127, at page 1133, 40 S.W.2d 450, at page 452. While it is true a pleading in a contest does not require the same strict technical accuracy in pleading as usually required in a civil action, yet, the original pleading must state a prima facie case and no amendment will be allowed which states a new and different cause of action. 'The purpose of the contest is to determine what candidate received the greatest number of votes; and if there are sufficient facts stated to give the other party reasonable information as to the grounds of the contest, then the case should be tried on its merits.' See Gunter v. Fletcher, 217 Ark. 800, 223 S.W.2d 242.

'The rule...