Widick v. Ralston

• Decision Date: 01 October 1946
• Citation: 197 S.W.2d 261,303 Ky. 373
• Parties: WIDICK et al. v. RALSTON.
• Court: Kentucky Court of Appeals

197 S.W.2d 261

303 Ky. 373

WIDICK et al. v. RALSTON.

Court of Appeals of Kentucky

October 1, 1946

Rehearing Denied Dec. 6, 1946.

Appeal from Circuit Court, Bell County; J. S. Forester, Judge.

Proceeding by J. K. Ralston to contest the results of a local option election, wherein Clyde R. Widick and others intervened and filed a counter-contest. From a judgment that a sufficient number of illegal votes had been cast in favor of prohibition to establish that prohibition had been repudiated by a majority of 44 votes, intervenors appeal and contestant cross-appeals.

Judgment affirmed.

H. L. Bryant and Logan E. Patterson, both of Pineville, and R. L. Maddox, of Middlesboro, for appellants.

C. K Calvert and W. L. Hammond, both of Pineville, and Arthur Rhorer, of Middlesboro, for appellee.

DAWSON Justice.

A local option election was held in Bell County on May 26, 1945. The final returns showed that prohibition carried by 186 votes.

On June 4, 1945, Fred Silhanek demanded a recount by the Board of Election Commissioners, and such recount reduced the majority in favor of prohibition to 153 votes.

On June 23, 1945, J. K. Ralston instituted this contest proceeding on the ground that in certain named precincts votes in favor of prohibition were cast by persons who had no right to vote where they did, or had no right to vote at all. The nominal defendants in the action were the sheriff and the members of the Board of Election Commissioners. These defendants filed a formal answer to the petition and within the proper time the appellants intervened in the action, filing various motions a general demurrer, and later an answer and counter contest. After the 30 day contest period had expired plaintiff offered three amended petitions. The intervenors likewise offered amendments to their answer and counter contest.

These intervenors represented the cause of prohibition and the real controversy is, of course, between plaintiff below and the intervening petitioners. After the issues were made up much proof was taken, and upon submission the lower court found that a sufficient number of illegal votes had been cast in favor of prohibition to establish that prohibition had been repudiated by a majority of 44 votes.

The intervenors appeal, and as grounds for reversal urge that:

1. The petition was fatally defective and the demurrer should have been sustained.

2. Plaintiff had no right to amend the original petition after the contest period.

3. The contest is barred by the recount proceedings instituted by Silhanek.

4. The court erred in considering in contest the names of certain voters who were not named in the petition but were listed in the intervenors counter contest proceeding.

5. It was error to refuse to permit the intervenors to withdraw the names of certain voters from the court's consideration.

6. The judgment of the court as to the illegality of various votes in favor of prohibition was generally erroneous on the theory that the evidence, as a whole, establishes such fraud and collusion as to authorize the court to ignore the actual testimony of the various persons whose votes were challenged and the evidence fails to support the findings of fact made by the chancellor.

7. The challenges of a number of votes in the counter contest proceeding were sustained by the evidence, although the lower court found to the contrary.

The appellee was granted a cross-appeal and is complaining that:

1. The lower court was in error in refusing to permit him to file an amendment to his original petition listing additional illegal voters.

2. There was intimidation in one of the precincts of such nature as to void the election in that precinct.

3. The court erred in refusing to take into consideration two votes in favor of prohibition which he claims to have successfully challenged.

These various complaints will be considered in the order named:

1, 2. Appellants' complaints one and two may be considered together. Plaintiff's original petition is paragraphed as to precincts and in each of such paragraphs it is alleged in substance that certain voters cast illegal votes, or voted illegally, in favor of prohibition. In each such paragraph a list of the alleged ineligible voters is given, but there was no allegation as to the reason for the ineligibility of the voter or the illegality of the votes. In each instance these allegations are followed by a general allegation that in the particular precinct mentioned in the paragraph there were numerous other illegal votes cast and that an amendment would later be filed furnishing the names of such illegal voters. After the contest period had expired plaintiff below offered an amendment which stated with particularity the reason for the illegality of each vote challenged in the original petition. In keeping with the statement in the original petition, an amendment, also offered after the contest period, attempted to add the names of additional illegal voters for prohibition. As stated above, it is appellants' contention that the original petition stated no cause of action and that its defects may not be cured by an amendment offered after the contest period.

The procedure in a local option election contest is the same as that provided by KRS 122.070 for general elections. (See KRS 242.120, and Adams v. Helton, 296 Ky. 9, 175 S.W.2d 1012.) The pertinent part of KRS 122.070 provides: 'The petition shall be filed and process issued within thirty days after the day of election; it shall state the grounds of the contest relied on, and no other grounds shall afterwards be relied upon.'

The original petition was undoubtedly defective, and standing alone would be demurrable. In Hogg v. Caudill, 254 Ky. 409, 71 S.W.2d 1020, 1021, an election contest case, it appeared that various votes had been cast after 4 o'clock. The contestant failed to name the voters who voted after 4 o'clock and state for whom they voted. In considering the sufficiency of the pleading and evidence the court said: 'It has been uniformly held by this court, except in Banks v. Sergent, 104 Ky. 843, 48 S.W. 149, 20 Ky. Law Rep. 1024, and in Caudill v. Stidham, 246 Ky. 174, 54 S.W.2d 654, that in a contest where the ground was the casting of ineligible votes the pleader must name in his pleading the persons whose votes he questions and the ground upon which he bases his objection as well as the facts which rendered them ineligible and sustain his allegations by competent evidence. Thurman v. Alvey, 192 Ky. 341, 233 S.W. 749, and cases cited; Rice v. Jones, 250 Ky. 385, 63 S.W.2d 474; Combs v. Brock, 240 Ky. 269, 42 S.W.2d 323; Humbert v. Heyburn, 240 Ky. 405, 42 S.W.2d 538. In so far as Banks v. Sergent, and Caudill v. Stidham, supra, are in conflict with the principles announced in this opinion, they are overruled.'

We again affirm the principles so set forth. However, the real question is the right of the plaintiff below to correct the defects in the petition by an amendment offered after the 30 day period provided by KRS 122.070.

Although the intervenors promptly filed a demurrer to the original petition, no action was taken thereon until the entry of the judgment, at which time the demurrer was overruled on the theory that the amendment had cured the defects. In considering the allegations of the original petition we can not escape the conclusion that a ground of contest was alleged in each of the precincts mentioned, this ground being the illegality of the votes. It is true that the reasons for the illegality of the votes were not stated, but we have concluded that this defect could be, and was, cured by the amendment. Under the express provisions of KRS 122.070 no new or additional grounds of contest may be set up after the expiration of the time allowed therefor. However, we have uniformly held that after the expiration of such time a ground of contest defectively stated within the time may be perfected by amendment. See Wilson v. Hines, 99 Ky. 221, 35 S.W. 627, 37 S.W. 148, 18 Ky.Law Rep. 233; Phillips v. Ratliff, 134 Ky. 704, 121 S.W. 460; Butler v. Roberson, 158 Ky. 101, 164 S.W. 340; Burke v. Greer, 197 Ky. 555, 247 S.W. 715.

In the case of Johnson v. Little, 176 Ky. 505, 196 S.W. 156, 157, Ann.Cas.1918A, 70, the answer, by way of counter contest, challenged certain votes cast by persons who could neither read nor write, but it was not alleged in the answer that these votes were cast by females. (Under the Statute then in existence this was necessary.) This disqualifying fact was afterwards alleged in an amended answer tendered after the time fixed for the filing of a counter contest. Holding that the amendment was properly filed this court said: 'If the matter set up in the amended answer complained of here were an additional ground of counter contest, it having been filed more than 20 days after the service of the summons, the doctrine of those cases would apply, but the fault in the contention is that the amendment contained no additional ground of counter contest, but only perfected a ground which had been alleged in time, but defectively. In the original answer the persons whose votes were questioned were named, but by inadvertence of the pleader the fact which rendered those votes illegal (they being females) was omitted. The amendment did not seek to incorporate therein, or to question, other votes besides those mentioned in the original answer, and therefore contained no additional ground in support of defendant's contention.'

We see no distinction between the omissions there and here, and under this rule the lower court properly permitted the corrective amendment to be filed.

3. Silhanek's petition for recount alleges that through mistake the ballots had been miscounted. The prayer of...