Vigil v. Pradt
| Decision Date | 29 January 1889 |
| Citation | 20 P. 795,5 N.M. 161,1889 -NMSC- 013 |
| Parties | VIGIL v. PRADT. |
| Court | New Mexico Supreme Court |
Appeal from Second district court.
Action by F. X. Vigil to contest the right of George H. Pradt to hold the office of county assessor. From an order striking out the answer of Pradt the latter appeals.
H. L Warren and J. F. Chaves, for appellant.
N. B Field and N. C. Collier, for appellee.
Francisco X. Vigil, a resident of the county of Valencia, and George H Pradt, who is the appellant in this court, were opposing candidates for the office of county assessor. The board of canvassers of said county delivered to the said Pradt a certificate of election, whereupon Vigil proceeded to contest the right of Pradt to hold the office, and within the time required, and in the form required, filed his notice of contest in the office of the clerk of the district court of Valencia county, and said notice was served on the contestee as required by law. The respondent, Pradt, filed his answer in the office of said clerk within 20 days after service upon him of said notice of contest, and caused a copy of such answer to be posted at a certain dwelling-house in the precinct of Los Chavez, in said county. On the 7th day of February, 1887, the contestant filed in the office of said clerk a motion to strike out the said answer, among other reasons, for that no copy of said answer was ever served on the contestant in the manner and within the time prescribed by law, and with such motion the contestant also filed his own affidavit, relating to his place of residence, at the date when the said copy of answer was posted on said dwelling in Los Chavez. On the 20th day of April, A. D. 1887, by agreement of parties, evidence was heard by the court in support of the averment of the motion as to the place of contestant's residence at the date of the posting of such copy of the answer. On the 25th day of April, 1887, the contestee filed in the court a written a motion, asking leave to serve upon the contestant a copy of the contestee's answer to the contestant's notice. On the 28th day of April, the court overruled the contestee's motion for leave to serve a copy of answer to the notice of contest on contestant, and this action of the court is now sought to be reversed by the contestee, and is one of the grounds of error, and assigned in this court. On the 4th day of May, 1887, the court found that the answer to the notice of contest had not been served on the contestant as required by law, sustained the motion of contestant to strike out the same, and on the averments of the notice of contest found and decreed in favor of contestant, giving him thereby the possession of said office, and this action of the court is also assigned for error.
It is stipulated by the parties that the averments of the notice if taken as true, are sufficient to require the court below to give the judgment rendered, and also stipulated that the answer in its averments was sufficient, in both form and substance, to constitute a good answer to the notice of contest. The questions to be decided here are-- First, whether the leave asked to serve a copy of the answer should have been granted; second, whether the court was right in striking out the answer to the contestant's notice; and the determination of both these questions depends upon the construction given to the statutes of this territory relating to contest of elections. On the motion to strike out, the evidence proved, and the court evidently found, that Vigil, the contestant, from July, 1886, was and resided at a place known and called "La Ojo de la Ternera," and about 50 miles distant from the precinct of Los Chavez, where the copy of the answer was posted. The notice of contest was filed December 7, 1886, and presumably served in 20 days; so that, both at the time of the commencement of the contest, the service of the notice thereof, and when the copy of the answer was posted, the contestant lived about 50 miles distant from the place of posting, and within Valencia county. Comp. Laws, § 1235, of this territory, is as follows: "The respondent shall file his answer to the notice of contest, and serve a copy thereof on the contestant within twenty days from and after the service of such notice of contest upon him, exclusive of the day of such service; and any material fact alleged in the notice of contest, not specifically denied by the answer, within the time aforesaid, shall be taken and considered as true." Section 1238: "A copy of the notice of contest, answer, and reply shall be served, respectively, in the same manner as process is now by law required to be served in an action at law." Section 1236: "The respondent now alleges in his answer any new matter, material to the issue, showing that the contestant is not legally entitled to the office in controversy; and, if he claims that illegal votes have been cast or counted for the contestant, he must specify in his answer the name of each person whose vote was so illegally cast or counted, the precinct where he voted, and the facts showing such illegality." The great importance to the contestant of the answer is at once perceived, upon a consideration of the foregoing last-quoted section. The answer may allege new matter, and...
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