Winton v. Irby
| Decision Date | 05 November 1934 |
| Docket Number | 4-3722 |
| Citation | 75 S.W.2d 656,189 Ark. 906 |
| Parties | WINTON v. IRBY |
| Court | Arkansas Supreme Court |
Appeal from Clay Circuit Court, Eastern District; Neil Killough Judge; reversed on appeal; affirmed on cross-appeal.
Judgment reversed in part, reversed and remanded.
F. G Taylor and G. B. Oliver, for appellant.
O. T Ward, T. A. French, Wm. F. Kirsch and Maurice Cathey, for appellee.
Appellant and appellee were candidates for the office of county and probate judge of Clay County in the run-off Democratic Primary held August 28, 1934. The Democratic Central Committee canvassed the votes, and certified that the appellee received 1,284 votes and the appellant 1,262.
The appellant filed a complaint in the Clay Circuit Court contesting the certification and nomination of the appellee, and alleged in substance that, according to the certificate of the central committee, the appellee had received 22 votes more than appellant. He alleged that in Oak Bluff Township, the vote, as tabulated by the central committee, gave appellant 57 votes and the appellee 349 votes. He further alleged that 200 of the votes for the appellee in said township, were cast by persons who did not have legal poll tax receipts made out in the manner and form required by law; that 25 persons voted for appellee in said township who claimed to have arrived at 21 years of age since the last assessing time, and that they did not subscribe to affidavits stating such facts to be true. He also alleged that 50 votes in said township were cast for appellee by persons who had no poll tax receipts. Substantially, the same allegations were made as to Blue Cane Township, Lidell Township, Wilson Township and Payne Township. He then alleges that he received a majority of 200 of the legal votes cast in the election for the office of county and probate judge.
There were eight paragraphs in the complaint, and paragraph No. 8 stated that the appellee was ineligible for the office of county and probate judge, that he had been convicted of embezzlement in the Federal court.
On motion of appellee, the court struck out paragraph 8. This, the appellant alleges, was error. Paragraph 8 did not state a ground for contest. A candidate contesting a primary election must show, in order to succeed, that he has received a majority of all the votes cast at such primary election. The real issue is, which candidate received a majority of the legal votes cast? If his competitor was ineligible, this would not entitle the contestant to receive the certificate of nomination, unless the contestant received a majority of the legal votes. Bohlinger v. Christian, ante p. 839; Swepston v. Barton, 39 Ark. 549; Collins v. McClendon, 177 Ark. 44, 5 S.W.2d 734. The trial court therefore did not err in striking paragraph 8 from appellant's complaint.
The appellee also filed a demurrer to plaintiff's complaint alleging that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and dismissed plaintiff's complaint.
The second amendment to plaintiff's complaint, which was stricken out by the court, was simply an amendment making the complaint more specific, and plaintiff should have been permitted to file the amendment.
The appellant prosecutes this appeal to reverse the judgment of the court in striking out paragraph 8, in refusing appellant leave to amend his complaint, and in sustaining a general demurrer to the complaint. The complaint stated facts sufficient to constitute a cause of action. The real question in the case, is whether the contestant received a majority of the legal votes. If he did, he is entitled to the nomination, and, if he did not, he is not entitled to the nomination although the other votes were cast for an ineligible candidate.
The appellant alleged that he was a qualified elector, and that he and the appellee were candidates for the office of county and probate judge, and that the certificate of nomination was given to appellee, and that appellant received more legal votes than appellee. These allegations were sufficient to make a prima facie case.
Section 3773 of Crawford & Moses' Digest, provides: "If the complaint is sufficiently definite to make a prima facie case, the judge shall, unless the circuit court in which it is filed is in session or is to convene within thirty days, call a special term," etc.
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...setting up a new ground of contest was proper when the time for filing an amendment had expired. See also Winton v. Irby, 189 Ark. 906, 909, 75 S.W.2d 656, 657 (1934) (quoting Robinson v. Knowlton, 183 Ark. 1127, 1133, 40 S.W.2d 450, 452 (1931)) (An election contestant may, "even after the ......
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...and technical objections will be disregarded.' Robinson v. Knowlton, 183 Ark. 1127, 1133, 40 S.W.2d 450, 452. And see Winton v. Irby, 189 Ark. 906, 75 S.W.2d 656; Hailey v. Barker, 193 Ark. 101, 97 S.W.2d Plaintiff in his complaint here alleges certain specific irregularities in the voting ......
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