Murphy v. Levengood

• Decision Date: 26 June 1904
• Citation: 77 P. 311,31 Mont. 34
• Parties: MURPHY v. LEVENGOOD.
• Court: Montana Supreme Court

77 P. 311

31 Mont. 34

MURPHY v. LEVENGOOD.

Supreme Court of Montana

June 26, 1904

Commissioners' Opinion. Appeal from District Court, Deer Lodge County Welling Napton, Judge.

Proceedings by Felix Murphy against Newton E. Levengood. From a judgment for defendant, plaintiff appeals. Reversed.

J. R Boarman, for appellant.

Jno. J McHatton, W. C. Jones, R. B. Smith, Jos. McCaffeny and T O'Leary, for respondent.

CALLAWAY C.

This action was brought by the appellant to contest the election of respondent to the office of county assessor of Deer Lodge county, and is a result of the election held in November, 1902. It is brought under the provisions of sections 2010 to 2025, inclusive, of the Code of Civil Procedure. To the complaint, or statement of contest, the respondent interposed a motion asking that the complaint be stricken from the files, and the contest dismissed, "for the reason that the grounds upon which the contest is based are alleged upon information and belief, and for the reason that the verification to said petition is made upon information and belief, and is not in accordance with the statute in such cases made and provided." The court sustained the motion and entered judgment thereupon in favor of the respondent. From the judgment this appeal is prosecuted.

An inspection of the verification to the complaint discloses that it is in practically the same form as that appended to the complaint in Lane v. Bailey, 29 Mont. --, 75 P 191. The case of Kirk v. Rhoads, 46 Cal. 398, referred to in Lane v. Bailey, is applicable to this case upon both of the grounds urged in the motion, and we therefore quote the following language from it: "The affidavit in this case was in the ordinary form of a verification of a pleading, and averred that the statement was true, except as to matters therein set forth on information and belief, and as to those matters affiant believed it to be true. This was a substantial compliance with the statute. To hold that the contestant must make oath to the absolute verity of every averment of the statement would prevent the contest of an election in almost any conceivable case, and would work a practical abrogation of a beneficial law. From the very nature of the case, many, and frequently most, of the essential facts must come to the knowledge of the contestant through the statements of others; for he cannot be present at the various polling places to observe the conduct of the officers of election. We think the object of the provision was merely to require a verification of the statement, but not to prescribe its form or terms. The object of the law is gained when the affidavit is in the ordinary form of a verification of a pleading." The Supreme Court of Indiana in Curry v. Baker, 31 Ind. 151, said that to construe the language of the statute as is contended by resp...