Siler v. Brown

• Decision Date: 18 June 1926
• Citation: 215 Ky. 199
• Parties: Siler v. Brown.
• Court: United States State Supreme Court — District of Kentucky

215 Ky. 199

Siler v. Brown.

Court of Appeals of Kentucky.

Decided June 18, 1926.

1. Elections — Striking Amended Petition and Answer, Not Timely Filed, was Proper, so far as they Asserted New Grounds of Contest, but was Error to Extent that they Merely Made Grounds Originally Charged More Specific. — In election contest, amended petition and answer, filed after time for filing grounds of contest and counter contest, were properly stricken, so far as asserting new grounds of contest, but court erred in striking them to extent

that they merely made more specific grounds charged in original petition and answer.

2. Elections — Petition, Alleging that Votes for Contestant were Not Counted and Certified for Him, and that Recount Will Show Many More Votes for Him than Were Certified, Held Sufficient to Require Recount. — Petition alleging that, by mistake or fraud, votes for contestant in certain precincts were erroneously counted and certified for contestee, and that recount will show that contestant received many more votes than were certified for him and majority of all legal votes cast, held sufficient to require recount.

3. Elections — Contestant Need Not State Contest Grounds with Precision of Pleading in Civil Action; Certainty to Common Intent Being Sufficient. — Contestant need not set forth contest grounds with precision of pleading in civil action; certainty to common intent being sufficient, and technical objectons disregarded.

4. Elections — Appellate Court Cannot Presume that Lower Court, Recounting Votes in Some Precincts After Sustaining Demurrer to Petition for Recount in Those and Other Precincts, Reconsidered Ruling. — Court of Appeals cannot presume that lower court, who recounted votes in certain precincts after sustaining demurrer to paragraph of contest petition asking recount in those and other precincts, reconsidered ruling on demurrer.

5. Elections. — Where there was no pleading authorizing court to recount votes, Court of Appeals must treat recount as nullity and assume that vote was as certified by election officers.

6. Depositions — Depositions as to Open Voting, First Charged by Pleadings Not Timely Filed, were Properly Stricken. — In election contest, depositions as to open voting in certain precincts. which was first charged by pleadings not timely filed, were properly stricken.

7. Elections — "Twenty Days Thereafter" for Completing Contestee's Proof Means 20 Days from Last Day Contestant Could Take Proof (Ky. Stats., Section 1596a-12). — "Twenty days thereafter," in Ky. Stats., section 1596a-12, as to time for completing contestee's proof, means from last day contestant could take proof, not from time he completed proof.

8. Elections — Court should Uphold Validity of Election and Throw Out no Precincts, where Results of Fraud, etc., May be Eliminated, and Result Between Legal Voters Clearly Ascertained. — If reasonably possible, court should uphold validity of election and not throw out any precincts, where results of fraud, bribery, etc., may be eliminated, and result clearly ascertained between legal voters, by eliminating illegal votes.

9. Elections — Petition Charging that Illegal Votes were Counted and Certified in Certain Precincts, Making it Impossible to Ascertain Number of Legal Votes Cast, Defectively Stated Grounds, and should have been Made More Specific by Amended Petition. — Petition charging that votes of minors and nonresidents of precinct or state for required time were counted and certified in certain precincts, making it impossible to ascertain number of legal votes cast, defectively stated such grounds of contest, and should have been made more specific by amended petition, had contestee so moved.

10. Elections — Parties May Prepare and Try Contest Under Petition Charging Grounds of Contest Indefinitely, in Absence of Motion by Contestee to Require Contestant to Make it More Specific. — Parties to eelction contest may prepare and try case under petition indefinitely stating grounds of contest that illegal votes were cast, if contestee makes no motion to require contestant to make pleading more specific.

11. Elections — One Renting Out House, to which She Expected to Return While Residing in Another County and State, from which She Returned 11 Months Before Election to Precinct in which House was Located and She Formerly Lived, could Vote Therein. — One expecting to return to and make her home in house, owned and rented out by her, while residing in another county and state, from which she returned about 11 months before election to precinct in which house was located and she formerly lived, could vote in such precinct.

12. Elections. — Persons moving from precinct about a month before election could not vote therein.

13. Evidence. — Generally, disfranchisement of ex-convict is presumed to continue until shown to have been removed by production of pardon.

14. Elections — One who had only begun moving from precinct on election day could vote therein.

15. Elections. — Persons having most of their household goods in house in precinct, to which they always intended to return and had returned at time of election, could vote therein.

16. Elections — In Absence of Proof or Contention in Brief that Parties were not Legal Voters, or Proof of How They Voted, Question of Legality of Their Votes Must be Treated as Waived. — In absence of proof or contention in contestee's brief that certain parties were not legal voters or evidence of how they voted, question of legality of their votes must be treated as waived, and parties treated as legal voters.

17. Elections — Contestee Not Charging Open Voting in Original Answer Cannot Benefit Thereby on Appeal. — Contestee not charging open voting at certain precincts in original answer cannot benefit by such contention on appeal; such charge in amended answer, filed after time for filing grounds of countercontest, being equivalent to new ground of contest.

18. Elections. — Votes of minors and residents of precinct and state for less than 60 days and one year, respectively, cannot be counted.

19. Elections. — Votes of persons voting openly cannot be counted.

20. Elections — Persons Living and Voting in Precinct for 30 Years, and Intending to Make Home Therein While Living in Another State, Could Vote Therein, Though Returning to State Within Year Before Election. — Persons living and voting in precinct for 30 years, and always intending to make their home therein while residing in another state, where they never voted, could vote therein, though they returned to state within year before election.

21. Elections. — Contestee does not lose illegal votes cast at precinct, vote in which was not attacked in contestant's original petition.

22. Elections. — Parties moving to another state, where they made a crop over year before election, and not returning until about 3 months before, could not vote.

23. Elections. — Votes of persons receiving ballots in name of resident voters, who did not go to polls, are illegal.

24. Elections — Husband and Wife Returning to State About 3 Months Before Election from Another State, in which he Engaged in Business, could Not Vote. — Husband and wife going to another state, where he engaged in business, about 8 months before election, and returning to state about 3 months before election, could not vote.

25. Election — Husband and Wife Returning to Precinct Less than 60 Days Before Election from where they Lived About 8 months could Not Vote. — Husband and wife, returning to precinct, where they had formerly lived, less than 60 days before election, from place where they had lived about 8 months and husband had voted, could not vote.

26. Elections — Contestant, Charging that Certain Votes were Illegal and Producing Evidence that no One in Small Precinct Knew Persons of Names Given by Voters, Placed Burden on Contestee to Show Their Existence and Right to Vote. — Where contestant charged in petition that certain votes were illegal, and produced evidence that no one in precinct, where only 135 votes were cast, knew persons of names given by voters, burden shifted to contestee to show that they existed and had right to vote.

27. Elections. — Voters' depositions as to how they voted should not be received in election contest.

Appeal from Whitley Circuit Court.

HENRY C. GILLIS and B.B. SNYDER for appellant.

W.R. HENRY and R.L. POPE for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

Siler contested the election of Brown as member of the board of education for the fifth educational division of Whitley county. He was unsuccessful and has appealed. These men were candidates of different factions of the Republican party, for this office at the November election, 1925. The election returns showed that Brown received 679 votes and Siler 671. Accordingly, Brown received the certificate of election on November 6, and on November 14, Siler filed in the office of the clerk of the Whitley circuit court, a petition contesting Brown's election. Process was served on Brown on November 20, and he filed his answer on December 2, to which Siler filed reply on December 5, thus completing the issues. By this petition Siler contests the election of Brown upon the following grounds:

First, that Brown did not receive the highest number of votes legally cast at the election, and that contestant did receive the highest number of legal votes. Second, that Brown at the time of the election did not have, and does not now possess the qualifications required of a candidate for said office, because he was not, and had not been, for one year next preceding the election, a resident of educational division No. 5. His third ground was:

"That in each of the following named voting precincts in said educational division No. 5, to-wit: Proctor, Mt. Ash, Jellico, Kensee and Saxton, the election officers by mistake, oversight, or fraud, erroneously counted and certified for contestee votes which...