State ex rel. Reiman v. Kimmell
| Decision Date | 09 November 1937 |
| Docket Number | 26779. |
| Citation | 10 N.E.2d 911,212 Ind. 639 |
| Parties | STATE ex rel. REIMAN v. KIMMELL. |
| Court | Indiana Supreme Court |
Appeal from Gibson Circuit Court; A. Dale Eby Judge.
Morton C. Embree, of Princeton, Thos. B. Coulter, A. A. Clark Ramsey & Grayson, and Ewing R. Emison, all of Vincennes for appellant.
Fred C. Gause and Arthur L. Gilliom, both of Indianapolis (H. R. Lewis, Shuler McCormick, C. G. Shake, and S. G. Davenport, all of Vincennes, of counsel), for appellee.
On the 8th day of April, 1935, the appellant filed an action in mandamus against the defendant in the Knox circuit court, in which he alleged that at the general election held on November 6, 1934, the appellant and appellee were opposing candidates, and the only candidates, for the office of mayor of the city of Vincennes; that at the time of the election the appellee was the duly elected and qualified mayor of said city, whose term expired January 1, 1935; that following said election the County Board of Election Commissioners, constituting the County Board of Canvassers of Knox County, duly canvassed the returns of said election and found that the appellant had been elected to said office by a majority of fifteen votes; that the result of said election was duly certified and filed in the office of the city clerk of the City of Vincennes, in the method and manner prescribed by law; that afterwards, on November 12, 1934, the appellant duly filed his verified statement of election expenses; that on November 15, 1934, the oath of office was administered to the appellant, and he filed bond in the sum and conditioned as required by law; that the city clerk, acting in collusion with the appellee, wrongfully refused to issue to the appellant a certificate of election to the office of mayor of said city for a term of four years, beginning 12 o'clock, noon, January 1, 1935, although repeated demands had been made upon him for such certificate; that appellant demanded of the appellee the possession of the office, together with all books, papers, records, and other property pertaining thereto, which was refused by appellee. Wherefore the appellant prayed the court to mandate the appellee to deliver to appellant possession of said office, and all books and property pertaining thereto.
To this complaint the appellee filed an answer in two paragraphs. The first was a general denial. The second paragraph admitted that he was mayor of said city from January 1, 1930, to January 1, 1935, by virtue of an election; that at the general election of November 6, 1934, the appellant and appellee were opposing candidates for the office of mayor as alleged in the complaint; that the Board of Canvassers canvassed the returns made by the election precinct officers for the several precincts of the city, and entered upon the canvassing sheets the number of votes received by each of the parties hereto, all of which were certified to the clerk of said city on November 8, 1934; that from said certified canvassing sheets it appeared that the appellant received 4,601, and the appellee 4,586, votes.
It is averred that the appellee, not being satisfied with the count of the votes cast for the office of mayor as returned by the Board of Canvassers, filed his petition for a recount in the Knox circuit court on the 10th day of November, following the election, together with bond and notice; that on November 15 the judge of the court at the hour designated in the notice, the appellant and appellee being present in person and by their attorneys, found that the petition for a recount was duly filed and sufficient, granted the prayer thereof, and requested each party to name a suitable, qualified commissioner to make such recount; that the appellant named William M. Willmore, and the appellee named Curtis G. Shake, and the court named Allen E. Hogue, each of whom was a resident and legal voter of the city. They duly qualified as commissioners. The court fixed the 19th day of November as the time for the commissioners to convene at the courthouse and recount the ballots cast at the general election of November 6, 1934, for mayor of said city. The clerk of the court was ordered to act as clerk of the Board of Recount Commissioners. The court ordered that, upon completion of the recount, the commissioners, or a majority thereof, should make out a certificate stating the number of votes received by each candidate, and to set forth therein which of said candidates had received the highest number of votes at said election, and what his majority or plurality was; that such certificate be filed with the clerk of the Knox circuit court and recorded in the order book of the court; that the clerk cause a transcript of such certificate, properly and duly certified, to be filed with the clerk of the City of Vincennes.
Pursuant to said appointment, the recount commissioners convened and conducted a recount of the ballots in accordance with the order of the court. The appellant and appellee were present, together with a witness selected by each. The result of the recount, as found by the recount commissioners, was that the appellee, at the general election November 6, received a majority of 7 votes for the office of mayor. A certificate was prepared and filed by a majority of the recount commissioners as directed by the court. Upon the filing of such certificates with the clerk of the court and the clerk of the city, the city clerk issued and delivered to the appellee a certificate of his election for a term of four years, beginning January 1, 1935. On receipt of said certificate, the appellee took his oath of office and filed his official bond, and since said January 1, 1935, has been and is now in possession and performing the duties of that office.
It is further alleged that during the pendency of the recount proceedings, on November 20, 1934, the appellant offered to file a motion in said cause to dismiss the recount proceedings on the alleged ground that the court was without jurisdiction of the subject-matter, to which offer to file the appellee objected. The objection was sustained by the court. That, afterwards, on the same day, the appellant filed a suit in said court against the appellee, the recount commissioners, the clerk of the circuit court, and the clerk of the city to restrain and enjoin the said commissioners from proceeding further with said recount, and to restrain the clerks from filing or issuing any certificate in respect thereto. A restraining order was issued without notice to the defendants, but was not served upon any of the defendants until the 22d day of November, 1934, but it is alleged that the recount had been completed and certified on that day before service of the restraining order; that the restraining order was thereafter dissolved by the court on November 26, and no further orders or injunction has been issued; that the complaint and application for the restraining order alleged that the court was without jurisdiction of the subject-matter of said recount.
The answer alleges that a controversy over the title to said office exists between the appellant and appellee; that there had been no judgment rendered by any court in any action adjudicating the title or the right to possession to said office of mayor; that the appellee claims that he received the highest number of legal votes cast for that office at the general election, and is in possession and performing the duties thereof under a certificate of election issued to him by the clerk of said city; that by virtue of the recount commissioners' certificate, based upon a canvass of all the votes cast at said election, the appellee is the duly elected mayor of the City of Vincennes, wherefore he asks that the appellant take nothing by his complaint.
To the second paragraph of appellee's answer the appellant filed a reply in two paragraphs. The first was a general denial and the second is an affirmative reply, in substance reiterating all the allegations of his complaint, and admitting the allegations of the appellee's second paragraph of answer, but in avoidance thereof says that all the proceedings had in pursuance to the petition asking for the appointment of recount commissioners were had under the provisions of sections 61 to 65, inclusive, of chapter 47 of the Acts of the General Assembly of the State of Indiana, Sp.Sess.1881 (sections 29-2101 to 29-2105, Burns' Ind.St.1933, sections 7388, 7392, Baldwin's Ind.St.1934), approved April 21, 1881; that...
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