Moore v. Childers

STATEMENT BY THE COURT.

This appeal is prosecuted by appellant from an adverse judgment in a proceeding contesting the Democratic nomination to the office of county and probate judge of Lawrence County in the recent primary election held on August 9, 1932.

There were numerous allegations of irregularities in the election and specific allegations as to the illegal votes cast in certain specified townships, and in precincts therein. The list of the alleged illegal votes challenged in each box are set out as exhibits.

It was further alleged that, if the illegal ballots above referred to "be not counted for the defendant, J. C. Childers," it will be found that the plaintiff received a plurality of the legal votes cast in said primary election for Democratic nomination to the office of county and probate judge of Lawrence County, and is entitled to be certified as such, and to have his name placed upon the ballot as such nominee of the Democratic party at the general election; "that said correct count would show that he received 1,947 votes; that the highest number of votes received by any of his opponents would not exceed 1,700 legal votes."

A general demurrer was filed, and, reserving the decision, a motion was filed by appellee to dismiss for nonjoinder of necessary parties, stating that there were 5 candidates for the nomination in the election; that the complaint does not state the names of the other candidates, nor the number of votes received by them, although each of said candidates received a substantial number of votes; that such allegations were material and necessary to such complaint, and the parties could not be brought in, although they were necessary and essential to the suit under the statute, because the 10-day period for bringing the contest had expired; and prayed a dismissal of the complaint for nonjoinder of the necessary parties. An affidavit was attached to the motion for dismissal.

The demurrer was sustained on August 31, 1932, and, no amendment being offered to be made, the complaint was dismissed. On September 1, appellant filed a motion for leave to amend the complaint to make same more specific by alleging the number of candidates for the office in the election and the votes received by each, and also that none of the three receiving the smaller number of votes was contesting the election, or had asked to be made a party. This motion was overruled and exceptions saved. Appellant gave notice of an intention to file a petition to amend the order sustaining the demurrer and, by an order nunc pro tunc, to correct the record. After a hearing, the court refused to amend the order, stating that appellant had declined to plead further and elected to stand upon his complaint, and also held in effect that the proper amendment could not be made after the 10 days for filing the contest had expired, and dismissed the cause of action. (after stating the facts). The court did not err in refusing to make the nunc pro tunc order requested. Upon a hearing it was disclosed that appellant's attorneys, when the demurrer was sustained, did not ask leave to amend, and the court noted on its docket that appellant elected to stand on his complaint and declined to amend, and dismissed it. The deputy clerk stated that the court read the docket entry, and none of appellant's attorneys objected to it, and that the motion to amend was not filed until the next day, September 1, which was more than 10 days after the expiration of the time allowed by law in which to file the contest.

This court has held that, in contested election cases for nomination to any particular office, it is necessary to allege the number of candidates for the particular office and the vote received by each, in order to disclose whether the contestant received a plurality of all the legal votes cast, upon the proper deduction made for illegal votes. In Hill v. Williams, 165 Ark. 421, 264 S.W. 964, the court, in holding a demurrer to the complaint properly sustained, said: "There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to appellee, that appellant would then have more votes than either one of his opponents.

"The demurrer to the complaint was properly sustained, as the general allegations therein of irregularities and fraud were mere conclusions, and the specific allegation failed to show that appellant received a plurality of all the legal votes cast for sheriff and collector at said election."

The complaint could not have been amended when the motion to remedy the defect was made on the 1st of September, since the amendment was not offered within 10 days after the certification of the nomination complained of, the provision of the statute requiring the contest to be filed within 10 days thereafter being mandatory and jurisdictional, and the failure to institute the contest properly within this time was fatal to the contestant. Hill v. Williams, supra; Gower v. Johnson, 173 Ark. 120,292 S.W. 382; Bland v. Benton, 171 Ark. 805, 286 S.W. 976; and Storey v. Looney, 165 Ark. 455, 265 S.W. 51.

It is only amendments, in such contested election cases, to make the complaint and allegations thereof more definite and certain that may be allowed after the 10-day period for bringing the contest has expired, and such amendments alleging new and additional grounds of contest are not permissible. Bland v. Benton, supra; Wilson v. Cardwell, ante p. 261.

We find no prejudicial error in the record, and the judgment must be affirmed. It is so ordered.