State v. Stewart
| Decision Date | 26 February 1926 |
| Docket Number | No. 26134.,26134. |
| Citation | 281 S.W. 768 |
| Parties | STATE ex rel. BROWN v. STEWART, Judge. |
| Court | Missouri Supreme Court |
Hamlin, Hamlin & Hamlin and Page & Barrett, all of Springfield, Charles Boyd, of Ozark, and Neale & Newman, of Springfield, for petitioner.
W. L. Vandeventer, of Kansas City, and Moore & Farrar, of Ozark, for respondent.
The relator seeks by prohibition to restrain the respondent, judge of the circuit court of Christian county, from proceeding further with an election contest, wherein the relator is contestee and G. Purd Hayes is contestant. Brown and Hayes were opposing candidates for prosecuting attorney of Christian county at the election held November 4, 1924. The canvass of the vote showed that relator received 2,109 votes, and contestant Hayes received 2,096 votes. The convassing board announced that relator was elected by a majority of 13 votes.
The relator filed his petition here February 2, 1925, averring the facts in relation to the election and the count of the votes, and alleging that November 21, 1924, Hayes placed in the hands of the sheriff of Christian county a copy of an alleged notice of intention to contest the election, on the same day posted in the office of the clerk of the circuit court of Christian county a copy of said notice, and made return that, being unable after diligent search to find the contestee, Omer Brown, or any member of his family over the age of 15 years, at his usual Place of abode in Christian county, he so posted the notice; that later the sheriff filed an additional return certifying that on November 27th he received a paper which purported to be a copy of the notice and petition in the case of Hayes v. Brown; that he visited the residence of Brown and failed to find Brown or any member of his family over the age of 15 years, and November 28th visited the residence of Brown twice and failed to find any member of his family; that he had no papers in his possession from the time the first notice was posted until November 27th.
The petition then alleges that at the January term, 1925, of the circuit court of Christian county, the relator filed a motion to quash the alleged service upon him of the said notice, and on the same date filed a motion to dismiss the proceeding, both of which motions were by the judge of said court, the respondent, overruled; that the said court was entirely without jurisdiction, but the respondent assumed jurisdiction of the election contest and announced that he would proceed to hear and determine the same. The petition prays this court to issue a writ of prohibition, as stated.
A preliminary rule in prohibition was issued by this court February 17, 1925. The respondent thereafter filed an acceptance of service, and filed a motion praying this court to permit respondent to require the sheriff to amend his return to conform to the facts. This motion was by this court sustained, and thereafter the respondent, on March 7, 1925, filed herein his return to the provisional writ, which, among other things, recites that respondent ordered a recount of the votes involved in said contest, and on such recount found contestant elected by a majority of 25, and, while the contestee was served with notice of this recount, he was not present in person nor by representation. To this return the petitioner filed a reply, joining issue on certain facts alleged therein. Thereafter, September 10, 1925, a stipulation was entered into between the relator and respondent, setting up the facts in relation to a second amended return of the sheriff in the contest case. This shows that the respondent took evidence regarding the service or attempted service of the notice upon the contestee, and upon such evidence ordered the sheriff to make a second additional return, which the sheriff refused to sign.
It is claimed by the relator that no jurisdiction of the cause was acquired by respondent because the contestee was never legally served with notice of the contest. In this matter we have for consideration: The first return of the sheriff, made November 21, 1924; the sheriff's additional return, made November 29, 1924; the second additional return, which the respondent ordered the sheriff to make, and entered of record as and for his return, though he refused to sign it; the evidence taken by the respondent after leave obtained from this court, upon which evidence he ordered the second additional return; the stipulation filed in this court. It is from these we must determine whether the respondent acquired jurisdiction to proceed with the election contest.
The relator filed in this court a motion to strike out a portion of the return of the respondent, which motion was taken with the case. The allegations asked to be stricken out are conclusions of law and not of fact, which may be good in a sheriff's return of service, but not in the respondent's return to this writ. Whether the allegations are relevant or otherwise is not important, because they are denied by the reply of the relator, and on the issue thus tendered the evidence was taken and the whole matter determined as a question of fact.
The motion may therefore be overruled.
It is first claimed by respondent that the relator waived any right to question the jurisdiction of the court by filing his motion to dismiss. The motion, stating that contestee appears for the purpose of the motion only, sets up several grounds why the service of the notice was not had upon the contestee according to law, and contains this additional ground:
"That the notice of the contestant to the contestee herein, upon which the sheriff's return is indorsed, does not state facts sufficient to constitute grounds for an election contest, under the laws of this state, and utterly and wholly fails to state any cause of action, under the laws of this state."
The respondent contends that this paragraph constitutes a general appearance, in that the attack is not limited to the mere lack of service of the notice, but questions the sufficiency of the notice as a cause of action. The contestee, by appearing for the purpose of the motion only, claims there was no waiver of his right to question the jurisdiction of the court for the want of service upon him.
No doubt in an ordinary action a motion which challenges the jurisdiction, and at the same time attacks the petition as stating no cause of action constitutes a general appearance. If the paragraph set out above can be construed as merely an attempt to question the sufficiency of the statement of contestant's case, it is a general appearance and a waiver of service. However, these are difficulties in the way of that construction. It is uniformly held that the statute relating to election contests is a code by itself and authorizes a proceeding unknown to the common law. Hancock v. Spencer, 65 S. W. 984, 166 Mo. loc. cit. 285; State ex rel. v. Hough, 91 S. W. 905, 193 Mo. 643.
The notice of an election contest as provided in section 4896, It. S. 1919, serves a double purpose (20 C. J. 218): It constitutes not only the petition setting forth the cause of action, but it serves the purpose of a writ. Judge Lamm, in Hale v. Stimson, 95 S. W. 885, 887, 198 Mo. 134, loc. cit. 145, explained the nature of the notice. He said:
"Under our method of contesting elections, the notice of contest takes the place of a petition in an ordinary suit, and the service of this notice upon contestee fills the office of a summons in an ordinary suit."
And, further:
"The notice of contest, therefore, must be judged of by the rules pertaining to the sufficiency of a petition, and, hence, must state a cause of action to give the court jurisdiction, or in order that a recount of votes may be legally made."
In support of that position he cites the Spencer Case, 65 S. W. 984, 166 Mo. 279, loc. cit. 286, in which case it was held that the court never acquired jurisdiction because the notice of contest did not state sufficient grounds to warrant a recount. Among the cases cited by Judge Lamm in the Hale Case was Castello v. St. Louis Circuit Court, 28 Mo. 259, a leading case, which is cited in many later cases. Castello contested the election of Cerre, who was returned elected sheriff of St. Louis county. Castello gave Cerre what he supposed to be the notice of contest required by statute. The court determined that the notice was insufficient and dismissed the proceeding. Castello then filed in this court a petition for writ of mandamus to compel the trial court to proceed with the case. This court, in considering the matter (loc. cit. 276) said:
"As the contestant had not given the necessary notice, if the court, after having heard the objections to the notice, had gone on with the trial, and after receiving the whole evidence had been of the opinion that Castello had received the greater number of legal votes, yet if it had been of the opinion that he had neglected to give the requisite notice, it would have been bound to have given judgment against him."
This court, following those earlier cases, in the case of State ex rel. Woodson v. Robinson, 192 S. W. 1001, 270 Mo. 212, went so far as to hold that a proper notice in an election contest, stating sufficient grounds for a recount, was necessary in order to give jurisdiction of the subject-matter, and a failure to give such notice could not be waived. In the later case of State ex rel. Newell v. Cave, 199 S. W. 1014, 272 Mo. 653, this court, by divided vote of four to three, receded from that extreme position, and held that an insufficient notice could be waived by the contestee by appearing to the merits of the cause. The opinion written by Judge Woodson does not distinctly overrule the Robinson...
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