Nash v. Craig

• Decision Date: 26 May 1896
• Citation: 35 S.W. 1001,134 Mo. 347
• Parties: NASH v. CRAIG.
• Court: Missouri Supreme Court

35 S.W. 1001

134 Mo. 347

NASH v. CRAIG.

Supreme Court of Missouri, Division No. 1.

May 26, 1896.

ELECTIONS — CONTEST — PLEADINGS — AMENDMENT — DUTIES OF COUNTY CLERK — CERTIFICATE.

1. In an election contest, the notices constitute the only pleadings; and where the court has acquired jurisdiction, from the filing of contestant's notice, within 20 days after the votes have been officially counted, as required by Rev. St. 1889, § 4706, it may allow an amendment to the original notice making more specific the grounds of contest, under section 2098, which provides that, in furtherance of justice, a pleading may be amended "by inserting other allegations material to the case."

2. Under Rev. St. 1889, §§ 4721, 4723, 4724, 4726, the duties imposed by a writ from the court in which notice of contest has been filed, directing the county clerk "to open, count, compare with the list of voters, and examine the ballots in his office, which were cast at the election in contest," and certify the result to the court which issued it, are merely ministerial, and, if performed under the supervision of the clerk, may be done by any assistant the clerk may select.

3. Among other duties the clerk is required to note the parties' objections to ballots, and for this purpose he may employ the use of a stenographer.

4. Where there were several contests of county offices, and it was agreed that one examination and count of the ballots should answer for all, a party to the contest, who made no objection to the presence of all the contestants and contestees, could not, after the result was ascertained, move to quash the return of the clerk because the clerk did not exclude from his office, while the ballots were being opened and examined, all the persons except the contestant and contestee and their attorneys, as required by section 4723.

5. On the issue of whether the ballots counted by the clerk, and certified to the court in an election contest, were identical with those voted and counted by the election officers, the finding of the court is conclusive, where there is any evidence to sustain it.

6. Under section 4726, the certificate of the clerk stating the result of his examination of the ballots cast at the election in contest is made prima facie evidence of the facts therein stated; and the recount by the clerk, giving every vote cast for the respective parties, both where its validity is unquestioned and where objection is made to it, takes the place of the canvass by the election officers, and constitutes the basis upon which the court is to act.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Robert M. Nash against Enos Craig to contest defendant's election to the office of clerk of Buchanan county. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an election contest over the office of clerk of the county court of Buchanan county. The parties were opposing candidates for said office at the election held on the 6th day of November, 1894. According to the official canvass of the vote by the election officers, completed on the 10th of said month, Craig received 5,660, and Nash 5,659, votes. Craig received a certificate of election. On the 27th of November, 1894, Nash served Craig with a notice of contest, specifying the grounds upon which he would rely. On the 28th day of December, 1894, Nash applied to the clerk of the circuit court of said county for an order upon the county clerk to open, count, compare with list of voters, and examine the ballots. The order was made, and the 5th day of December was fixed as the time for beginning such examination and count. It appears that there was a contest, also, over the election of most of the other county officers. An order for a recount was made in each case, and the same day fixed for the hearing. All the contestants and their attorneys appeared, and one examination was made to answer the purpose of all. A stenographer of the county clerk was also present, and a special deputy was brought in by the clerk to assist in the examination and recount. According to the examination and count of the clerk, which was concluded on the 24th of December, 1894, Nash received 6,827 and Craig 5,748, votes. On the 31st day of December, 1894, Craig served upon Nash a counter notice of contest, giving the grounds upon which he would rely. At the January term of the circuit court 1895, contestee, Craig, filed a motion to quash the return or report of the county clerk. The chief grounds of this motion were that the examination and count was made principally by a deputy clerk and by a clerk employed especially to assist in the work; and that other persons than contestant, contestee, and their attorneys were permitted to be present during the examination. The motion was overruled, and contestant excepted. At said term of court, and on the 7th day of January, 1895, there was served upon contestee an amended notice of contest. This amended notice was, in substance, the same as the original, but gave more explicitly the grounds of contest. A motion of contestee to strike out this amended notice, on the ground that it was not authorized, was overruled by the court, and contestee excepted. The case was called for trial on the 21st day of January, 1895, and on that day contestee filed a motion for a continuance, which was overruled, and he saved no exception. On the same day contestee filed a motion for a change of venue on account of the prejudice of the judge. Upon hearing this motion, the court made an order transferring the cause to another division of the same court, which was then in session, presided over by a different judge. The records were at once transferred to the court room of division 1, and the witnesses were ordered to report to that court. The judge of that division immediately called the case for trial. Contestee thereupon filed an application to have the cause transferred back to division 2 on the ground that the order transferring it to division 1 was void. The motion was overruled, and contestee excepted. Contestee then filed a written objection to having the case then heard for the reasons that the court had no jurisdiction over the cause, and that the cause should be placed at the foot of the docket. This motion was also overruled. An application for a continuance was made on the 22d of said month, which was overruled. Contestee then asked for time to prepare an application to continue on the ground of the absence of witnesses, which was denied him. The trial thereupon proceeded, and at its conclusion the court found that Nash received 3,558 and Craig 3,183 votes, giving a majority of 375 in favor of contestant. Judgment was rendered in accordance with the finding, and contestee appealed.

K. B. Randolph and Brown & Pratt, for appellant. Hall & Woodson, Huston & Parrish, Casteel & Haynes, and Jas. W. Boyd, for respondent.

MACFARLANE, J. (after stating the facts).

The rulings of the court on some of the matters excepted to are not made grounds of error here, and only such matters as are insisted upon will be considered.

1. Objection is first made to the right of the contestant to amend his notice, so as thereby to include grounds of contest not specifically stated in the original. The statute provides that no election of any county officer "shall be contested unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted," and that "the notice shall specify the grounds upon which the contestant intends to rely, and, if any objection be made to the qualification of any voters, the names of such voters and the objection shall be stated therein." Rev. St. 1889, § 4706. While the statutes expressly provide that no formal pleading shall be required in cases of contested elections, yet it has been held that "this notice is the initiatory step in the contest, and operates in the nature of a petition and writ in an ordinary civil action." State v. Smith, 104 Mo. 667, 16 S. W. 503. Again, it is said: "The notices on the one side and the other constitute the only pleadings." Gumm v. Hubbard, 97 Mo. 318, 11 S. W. 61. While the proceedings in such cases are statutory and special, and jurisdiction of the subject-matter can only be acquired in the manner prescribed, yet, the jurisdiction having been obtained by giving proper notice in the time and manner pointed out by the statute, no particular mode of subsequent procedure being provided, the rules applicable to practice in civil cases should govern. The right to amend pleadings in furtherance of justice was, at common law, discretionary with the court, and our code of practice is even more liberal. It provides that the court may, at any time before final judgment, in furtherance of justice, on such terms as may be proper, amend any pleading or proceeding "by inserting other allegations material to the case." Rev. St. 1889, § 2098. No reason can be seen why, after the court has acquired jurisdiction over the subject-matter, — that is, the election contest, — the parties should not be allowed all the rights that are accorded to other parties in any other proceeding. Indeed, the reason for allowing amendments in those cases is more imperative than in most others, because the rights of the public are also involved. It has been uniformly ruled that statutes governing elections should be given a liberal construction, whenever they will admit of it; and the same rule should be applied to the pleadings in order that substantial justice may be done, not only to the contesting parties, but to the public. We find no case in this state in which the identical question has been directly passed upon. In the case of Shields v. McGregor, 91 Mo. 534, 4 S. W. 266, contestant filed what is termed by the court a "supplemental petition," in which grounds of contest are alleged other than those charged in the original notice. This...