Sawin v. Pease

• Decision Date: 19 November 1895
• Parties: SAWIN v. PEASE
• Court: Wyoming Supreme Court

42 P. 750

6 Wyo. 91

SAWIN v. PEASE

Supreme Court of Wyoming

November 19, 1895

Commenced in District Court December 12, 1894.

ERROR to the District Court for Albany County, HON. J. H. HAYFORD Judge.

Election contest. The material facts are stated in the opinion.

Reversed.

W. H Fishback, for plaintiff in error, cited the following authorities. (Bliss on Code Pl., 210, 211, pp. 258-59; Landmer v. People, 15 Colo. 559; Wilson v. R. R. Co., 7 Colo. 102; White v. Lyons, 42 Cal. 279; Herford v. Cramer, 7 Colo. 483; Bayles v. Ry. Co., 13 Colo. 196.)

Bramel & Bramel, for defendant in error.

The plaintiff in error waived any irregularity in the manner of printing the name of defendant upon the ballot, not having properly made objection thereto prior to the election. (State v. Norris, 37 Neb. 299; Allen v. Glynn, 17 Colo. 338; Bowers v. Smith (Mo.), 20 S.W. 101.) A demurrer does not admit conclusions of law. (Millard v. Baldwin, 3 Gray, 484; Sistermans v. Field, 9 id., 331; Ockendon v. Barnes, 43 Iowa 615; Gould Pl., Sec. 29.) A mere charge of fraud without a statement of the facts on which the fraud is based is the averment of a legal conclusion and subject to demurrer. (Ockendon v. Barnes, supra.) There was no error in printing name of defendant upon the ballot twice. (State v. Stein, 53 N.W. 999; State v. Norris, 55 N.W. 1086; Miller v. Pennoyer, 31 P. 830 Or.; Fisher v. Dudley (Md.), 22 A. 2; Simpson v. Osborne (Kan.), 34 P. 747; Shields v. Jacobs, 50 N.W. 104 (Mich.); Ellis v. Glaser, 61 N. W. (Mich.), 651; Behrensmeyer v. Kreitz, 26 N.E. 709.) The averment that bears most strongly against the pleader will be taken as true. (Bell v. Brown, 22 Cal. 671; Steph. Pl., 378.)

A party can not state a new cause of action in an amendment. (Bliss Code Pl., 429.) For that reason the new allegations in the amended petitions were properly stricken out. Matter inconsistent with or repugnant to the substantial allegations of the original petition can not be introduced by amendment. (Balleton v. Fuller, 60 N.W. 1071; Ogden v. Moore, 95 Mich. 290; Hill v. Hill, 53 Vt. 578; Bank v. St. L. D. Co., 38 F. 57; Ray v. Womble, 56 Ala. 32.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

This is an election contest, and involves the election of county superintendent of schools of the county of Albany at the general election held in 1894. Lizzie F. Sawin was the republican nominee and Sarah W. Pease was the nominee of the Democratic and People's parties. The latter was declared elected, and within thirty days thereafter the plaintiff filed her petition in writing with the clerk of the district court of Albany County for the purpose of contesting the election. To this petition a motion was interposed asking that it be made more definite and certain, which was sustained in part only, and plaintiff was granted time and leave to file an amended petition. The amended petition was filed, and a motion to strike therefrom certain portions as redundant and irrelevant was sustained in part, and upon a demurrer to this petition being sustained, leave was again granted for the filing of an amended petition; thereupon a second amended petition was filed, and to this a motion was filed to strike out parts thereof for the reason that the same stated a new point of contest for the first time set up in the second amended petition, and more than thirty days had elapsed since the defendant was declared elected, and that the paragraphs thus complained of were inconsistent with and repugnant to certain allegations of the original and first amended petitions. This motion was sustained. A demurrer to the second amended petition was then filed, and this was sustained, and the plaintiff not desiring to plead further, judgment was rendered in favor of defendant, and plaintiff prosecutes error.

The only matters at all before us for consideration is the action of the court in sustaining the motions to strike and the demurrers. At the outset we are confronted with the proposition suggested by counsel for defendant, that the record fails to disclose any exception to the ruling of the court in sustaining the motion to strike out certain paragraphs and parts of the second amended petition. The journal entry of the court in relation to the ruling upon that motion is silent respecting any exception of plaintiff. The record before us is all embodied in what is entitled at the commencement, "Bill of Exceptions," and at the close thereof appears the signature of J. H. Hayford as judge of the second judicial district of Wyoming, immediately preceded by the statement that the plaintiff prayed that "this her bill of exceptions in that behalf might be allowed, which is accordingly done, and upon her motion ordered to be made a part of the record in this case. " The document in its entirety contains all the pleadings, the various motions filed, orders made thereon, and all journal entries certified to by the clerk of the court under its seal, and then a statement of the various proceedings taken in the case, this last-mentioned statement being headed by the title of the cause and entitled "Certificate of the Court." After the statement of venue and title of the cause on the first page of the record before us appear the words "Bill of Exceptions," and the whole including the part called "certificate of the court" is signed by the presiding judge of the court. Although the pleadings and journal entries are a part of the record without a bill of exceptions, the fact that they are thus incorporated in the bill will not invalidate it or prevent that which is properly within it from thereby becoming part of the record. In the certificate of the court, or the final statement so denominated, appears the following: "And on the hearing of the motion of defendant to strike out all of paragraph 4 of point 'A' and point 'B,' therein described in this cause, in the district court aforesaid, at the January, A. D. 1895, term of said court, the said court sustained said motion on the ground that said plaintiff's second amended petition contained new matter, to which ruling and decision of the court the plaintiff excepted." This by order is then made a part of the record. We conceive that this sufficiently shows by the record that an exception was preserved to the ruling of the court upon the motion.

The original petition, after alleging certain jurisdictional facts, and that the board of canvassers, composed of the county clerk and two justices of the peace of the county, in making up the abstract of votes from the various returns, found and declared that defendant was elected by a majority of five votes over the plaintiff, proceeds to state that plaintiff desires to contest the election, and then follows a statement of the points of contest. The petition was divided into numbered paragraphs, the points of contest commencing with paragraph number 7, which is again subdivided into paragraphs numbered consecutively A to F, inclusive. These points in substance were that the official ballot had printed upon it the candidates for the office in question as follows:

"For County Superintendent of Schools.

"(Vote for one)

"Sarah W. Pease

Democrat.

"Sarah W. Pease

People's Party.

"Lizzie F. Sawin

Republican,"

thereby misleading and deceiving the voters of Albany county, and thereby depriving plaintiff of her right to have the ballot of an elector counted but once. These allegations appeared in subdivision "A" of paragraph number 7. Then in subdivision "B" it is alleged that as a result of the printing of the ballot in such manner four hundred and twenty-six electors voted twice for the defendant, and that the judges of election of the various voting precincts wrongfully and illegally counted said four hundred and twenty-six votes as legal votes, and as having been cast for said defendant, and the county clerk in making up his abstract wrongfully and illegally counted said votes as legal votes and as having been cast for the defendant. In subdivision "C" it is stated that in precincts one, four, and five in Laramie City, and in the precints named "Little Medicine" and "Seven Mile" and a number of others, the judges of election counted the votes appearing on the official ballot as having been cast for defendant as People's party candidate and as the Democratic party candidate separately, and afterward added together the totals so found, and returned the total thus arrived at in their returns to the county clerk, and said clerk in making up his abstract wrongfully and illegally accepted said totals, thereby giving credit to defendant with one hundred and more of illegal votes.

Subdivision "D" contains the following allegations: That no returns have been made of the poll books, ballots cast, and affidavits of electors concerning the qualifications of electors voting, to the county clerk as provided by law from Mountain Home, Lodge Pole, and Mandel precincts, and that the canvassers in making up their abstract did wrongfully and illegally credit said defendant with forty-nine votes alleged to have been cast for her in said precincts as represented by pretended returns of said precincts.

In subdivision "E" it is alleged that in making up the said abstract and in declaring that defendant had received 1132 as against 1127 received by the plaintiff, the county clerk did count and give credit to defendant with over one hundred illegal votes.

In subdivision "F" that upon a recount of all the legal votes having been cast for superintendent of schools the result will show that the plaintiff has been duly and legally elected to said office and is entitled to the election certificate.

The petition then in paragraph number 8 proceeds to aver that the county clerk,...