Rogers v. Scott., 3681.

• Decision Date: 26 June 1931
• Docket Number: No. 3681.,3681.
• Parties: ROGERSv.SCOTT.
• Court: New Mexico Supreme Court

35 N.M. 446

300 P. 441

ROGERS

v.SCOTT.

No. 3681.

Supreme Court of New Mexico.

June 26, 1931.Rehearing Waived July 3, 1931.

Syllabus by the Court.

Allegations, in notice of election contest, showing unsuccessful candidate was legally elected, will constitute grounds for contest (Comp. St. 1929, §§ 41-601, 41-604, 41-606).

Any allegations showing that the unsuccessful candidate was legally elected will constitute ground for election contest.

Allegations of notice of election contest that contestant received majority but, after return, ballots were fraudulently altered, thereby changing result on recount, held to state grounds for contest (Comp. St. 1929, § 41-604).

Allegations that contestant received majority, but after returns ballots were fraudulently altered so as to change result on recount, state ground for election contest.

Notice of election contest need not specify names of persons whose ballots were alleged to have been fraudulently changed after return but before recount (Comp. St. 1929, § 41-604).

Names of persons whose ballots were fraudulently changed after returns of election need not be specified in notice of contest.

In election contest, whether omission to insert copy of signatures of contestee and notary public, in copy of answer served, was fatal, not decided (Comp. St. 1929, § 41-601 et seq.).

Whether, in election contest, omission to insert copy of signatures of contestee and notary public in served copy of answer is fatal defect, requiring material allegations of notice to be taken as true, not decided.

In election contest, joining in reply objection to service of answer with denial of allegations of new matter waives objection (Comp. St. 1929, § 41-601 et seq.).

In reply in election contest, joining objection to service of answer, with a denial of allegations of new matter, waives the objection.

In election contest, allegations of notice not specifically denied must be taken as true (Comp. St. 1929, § 41-601).

In election contest allegations of notice not specifically denied must be taken as true.

In election contest, single denial that any ballots were changed held good as to several allegations of change in separate paragraphs (Comp. St. 1929, § 41-601).

In election contest, single denial that any ballots were changed held good as to several allegations in separate paragraphs that they were changed.

Denial of allegation in election contest may be specific though made on information and belief (Comp. St. 1929, § 41-601 et seq.).

A denial of allegation in election contest may be specific though made on information and belief.

Election contest statute authorizes allegations and denials on information and belief (Comp. St. 1929, § 41-601 et seq.).

Election contest statute authorizes allegations and denials on information and belief.

Appeal from District Court, Bernalillo County.

Election contest by Mrs. Will Rogers against Mrs. Lucy Scott. Judgment for the contestant, and the contestee appeals.

Reversed, and cause remanded with directions.

A denial of allegation in election contest may be specific though made on information and belief.

George R. Craig, R. P. Barnes, and David A. Grammer, all of Albuquerque, for appellant.

Fred E. Wilson and Thomas J. Mabry, both of Albuquerque, for appellee.

WATSON, J.

This is an election contest involving the office of county clerk of Bernalillo county. In the recount stage the matter was before us in State ex rel. Scott v. Helmick, 35 N. M. -, 294 P. 316. Following that decision a certificate of election was awarded to Mrs. Scott, and Mrs. Rogers instituted this contest.

The material allegations of the notice of contest were, in their substance, that the contestant was elected to the office by a vote of 7,039 for herself and 6,946 for the contestee, which result was correctly shown by the returns and by the original canvass; that, after such returns, unknown and unauthorized persons obtained possession of and opened the ballot boxes of four named precincts and changed the markings on ballots, as a result whereof it appeared at the recount that 135 less ballots were cast for contestant in the four precincts, and 136 more for contestee, than as shown by the original and correct returns and canvass.

The answer admits that the vote was shown by the returns and by the original canvass to be as stated, and otherwise attempts denial of the allegations of the notice. By way of new matter, it is set up that, in certain named precincts, 151 ballots were cast by unregistered persons; that 11 persons voted twice; that one ballot was cast in the name of a deceased person; and that all of these were counted for contestant.

The reply, in paragraph 1, set up that the answer is insufficient in law in that: (a) No copy of the pretended verified answer was served upon contestant; (b) the allegations of certain numbered paragraphs of the notice are not specifically denied and must be taken as true; and (c) the new matter set up does not state a cause of action. Then, “reserving objection and exception to the legal sufficiency, and filing and service ***” of the answer, contestant proceeded in the reply to deny the allegations of new matter contained in the answer.

The trial court found that the material allegations of the notice were true and gave judgment for the contestant, which is now before us on appeal.

The findings on which the judgment rests were not made upon proofs, but upon certain rulings on pleadings and procedure, upon questions submitted by the respective parties when the matter came on for hearing. This appeal challenges the correctness of those rulings.

[1] The first point relied on by appellant is that the matters alleged in the notice constitute no ground of contest contemplated by the statute. This involves construction of 1929 Comp. §§ 41-601, 41-604, and 41-606.

We conclude that, under these sections, an unsuccessful candidate has a remedy by contest upon any ground or grounds which go to show that he was legally elected to the office. The first sentence of section 41-601, creating the remedy, is unlimited as to the grounds which may be asserted. Section 41-604 cannot be deemed to restrict the right to cases of the casting or counting of illegal votes. On the contrary, there is the plain inference that there may be other grounds. Section 41-606 guides us to the real ultimate issue in such a proceeding. The contestee may, by way of new matter, set up any facts “showing that the contestant is not legally entitled to the office in controversy.” It necessarily follows that the contestant may set up in his notice any facts showing that he is legally entitled to the office. We realize that the right is statutory and that it exists only to the extent and upon the grounds specified. Nevertheless, we cannot escape the foregoing conclusion.

[2][3] It is next urged that the notice is insufficient and should have been dismissed because it failed to “specify the name of each person whose vote was so illegally *** counted.” 1929 Comp. § 41-604.

The requirement invoked obviously applies only if contestant “claims that illegal votes have been cast or counted for the contestee.” This is not such a case. Although the notice does set up that the “recount figures” were “erroneously, illegally, and unlawfully obtained” because there were “included and counted” therein the ballots alleged to have been changed, this is not a case of illegal counting of ballots. The gist of the charge is that there was a wholesale alteration of ballots after they had once been counted legally. The notice shows that the officials, when reassembled, counted the ballots as they then found them. The illegality complained of does not lie in the count or in the recount. It consists in the fraudulent alteration of ballots.

This disposes of the questions raised by appellant at the hearing and decided adversely, and brings us to the points raised by appellee. Those points we have already stated. Point (c) was overruled, but points (a) and (b) were sustained, and the judgment is based upon them.

[4][5] To substantiate point (a) appellee produced proof that the document served upon her as a copy of the verified answer, while a true carbon copy of the typewritten portion thereof was in blank as to the signature of the contestee to the answer and to the verification, as to the signature of the notary public to the jurat, and as to the notarial seal. Upon this proof the court held that no copy had been served and that the material allegations of the notice stood undenied and must be taken as true.

Whether the attempted service was thus fatally defective we find it unnecessary to decide, since we find ourselves in agreement with appellant's contention that service was waived. As previously stated, the objection to it was made by the reply, in which there was also incorporated matter defensive to the new matter set up in the answer.

The principal of waiver by pleading over is well known, generally salutary, and of wide application. This court applied it in one of the more recent election cases. Wood v. Beals, 29 N. M. 88, 218 P. 354. We there held that total failure to serve the notice of contest is waived if the contestee appears and answers to the merits. A fortiori, service of an answer will be waived by replying to the merits of the new matter therein.

Appellee admits that, if this were a civil action, the claim of waiver would be good. She does not question that Wood v. Beals, supra, would be controlling, except for a subsequent provision of statute. We may therefore start from that point.

The election code of 1927 (1929 Comp. § 41-601 et seq.) contains a new provision: “There shall be no other pleading except the notice, answer and reply, and issues of both law and fact shall be made thereby” (section 41-609). Appellee urges that this section abolishes the practice, long followed in this jurisdiction, of taking advantage of such defects by motion to strike or for ...