State Ex Rel. Hancock v. Hubbs

MebbimoN, J.

The complaint sufficiently alleges a cause •of action, but it certainly contains much unnecessary redundant matter, including evidential facts. This is all .surplusage, and to be disregarded as part of the pleadings. The demurrer applies only to the constituent and material allegations of the complaint, and, for the purposes of deciding the questions of law presented by the record, these must be accepted as true. It is distinctly alleged that the whole number of votes cast at the election was .a number designated; that of them the relator received a number mentioned — a majority of the whole number; that other persons received votes less than a majority, and that the relator, having received such majority, was duly elected. This is a constituent allegation to which the demurrer properly applies. So that the complaint does allege that the relator received “ a majority of the votes cast at said election,” and the cause of demurrer cannot be sustained.

In other respects this case is fully embraced by what was •decided in Gatling v. Boone, Hahn v. Stinson and Kilburn v. Batterson, of the present term. There is no error.

Affirmed.