State ex rel. Scher v. Ayres

• Decision Date: 04 May 1940
• Docket Number: No. 27418.,27418.
• Citation: 26 N.E.2d 1002,217 Ind. 179
• Parties: STATE ex rel. SCHER v. AYRES et al.
• Court: Indiana Supreme Court

217 Ind. 179

26 N.E.2d 1002

STATE ex rel. SCHER

v.AYRES et al.

No. 27418.

Supreme Court of Indiana.

May 4, 1940.

Action in mandate by the State of Indiana, on the relation of Eugene G. Scher, against E. Porter Ayres, Guy B. Huber, and Russell Griffith, as election commissioners of and for Huntington county, in the state of Indiana, to compel them to place his name on the primary ballot as a candidate for precinct committeeman. From an adverse judgment, the relator appeals, and the defendants move to dismiss the appeal.

Motion to dismiss appeal overruled, and judgment reversed, with directions to overrule demurrer.Appeal from Huntington Circuit Court; Arthur H. Sapp, special judge.

William D. Hamer, of Huntington, for appellant.

Joseph H. Lesh and Mart J. O'Malley, both of Huntington, for appellees.

SHAKE, Chief Justice.

The record in this cause was filed and the cause submitted on April 29, 1940. The parties have joined in a stipulation waiving the time for filing briefs and the right to a petition for rehearing. The matter appears to be of public interest because it involves the general primary election to be held on May 7, 1940.

On April 22nd the appellant filed an action in mandate against the appellees in the Huntington Circuit Court. The appellees are the county election commissioners. The complaint alleges that on April 6th the relator filed his declaration of candidacy for precinct committeeman for precinct 6 in Huntington township, in said county, in the office of the county clerk; that the election commissioners met on April 18th to prepare the ballot to be voted on at said primary election, and at said time refused to recognize the declaration of the relator and omitted his name from said ballot. The relator's declaration of candidacy is made an exhibit to the complaint. This document was signed, ‘Gene G. Scher.’ The complaint alleges that relator was registered as a voter under the name of ‘Eugene Gabriel Scher,’ and that the declaration of candidacy bears a memorandum over the signatures of the election commissioners as follows: ‘5 P. M. April 18, 1940, Dis-qualified. Signature not correct. Not same signature as Registration Card.’ The complaint asked for a mandate against the appellees to compel them to place the relator's name on the ballot for said primary. The appellees demurred to the complaint for want of facts. The trial court sustained the demurrer; the appellant excepted and refused to plead further; judgment was rendered for appellees; and this appeal followed.

We are first confronted with the motion to dismiss the appeal. The assignment of errors is entitled: ‘State of Indiana on the Relation of Eugene G. Scher, Appellant vs. E. Porter Ayres, Guy B. Huber and Russell Griffith, As Election Commissioners of and for Huntington County in the State of Indiana, Appellees.’ The body of the assignment of errors recites that, ‘The appellant, Eugene G. Scher, says there is manifest error, etc.’ The point is made that the State on the relation of Scher is the proper party appellant, and that the body of the assignment indicates that Scher in his individual capacity is the sole appellant. The appellees rely upon Board of Public Safety v. Walling, 1933, 206 Ind. 540, 187 N.E. 385. That case is authority for the rule that where the state on the relation of individuals is the appellant, it is not sufficient to assign error in the names of the individual relators. We do not think that case is controlling here. The caption of the assignment of errors is correctly entitled, although the body of the instrument does refer to the appellant as ‘Eugene G. Scher.’ The rule is that the assignment of errors must...