Phelps v. Fenix
| Decision Date | 05 December 1939 |
| Parties | Tom Phelps, Appellant-Contestant, v. Frank Harold Fenix, Respondent-Contestee |
| Court | Missouri Supreme Court |
Reported at 345 Mo. 440 at 448.
Original Opinion of December 5, 1939, Reported at 345 Mo. 440.
On Motion For Rehearing.
The appellant-contestant, Phelps, challenges our statement in the first and fifth paragraphs of Part II of the opinion that the contestee's answer in the trial court denied he (contestant) received a majority vote in the election. He quotes a part of the answer, which reads as follows "Contestee . . . denies that the contestee received a majority of the legal votes cast at said election." (Italics ours.) And he argues that the contestee by that allegation admitted himself out of court -- in other words, admitted he (contestee) did not get a majority vote.
The contention cannot be sustained. The word "contestee" in the quoted excerpt evidently was used inadvertently for "contestant" or was a misprint. The other parts of the answer show it was contestee's theory that he was duly elected. And appellant did not file a motion for judgment on the pleadings in the lower court after the answer had been filed, but treated the aforesaid issue as being in the case. This question of pleading was not raised by contestant, so far as we can find, until he presented it in his reply brief in this court. In these circumstances the answer must be held sufficient to raise the issue. [Johnson v. Mo. Pac Ry. Co., 96 Mo. 340, 346, 9 S.W. 790, 791, 9 Am. St. Rep. 351.]
Appellant further complains of the ruling in the sixth paragraph of Part II of the opinion. It is there stated that appellant stood on the county clerk's return, which was prima facie evidence of the facts stated therein, and which showed there were no registration numbers on any of the ballots cast in five precincts in Joplin. We held on these facts, thus appearing from appellant's own showing, that if the ballots cast for contestee must be thrown out because there were no registration numbers thereon, the ballots cast for contestant should be rejected for the same reason.
Appellant asserts we were in error in stating he stood on the evidence presented by the county clerk's return, and refers us to pages of the record showing that when the county clerk was canvassing the ballots, his counsel objected to the counting of any ballots for contestee from which the...
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