Doss v. Howard
202 S.W. 888
May 3, 1918.
180 Ky. 413
ACTION: Affirmed as to Delph, but reversed as to Howard and remanded, with directions to proceed in conformity with opinion.

Appeal from Circuit Court, Bell County.
Action by James Doss against Tyrus Howard and Simon Delph.
From judgment dismissing the petition, plaintiff appeals.

At the election held for trustee in subdistrict No. 1, education district No. 1, of Bell county, on the first Saturday of October, 1917, James Doss and Tyrus Howard were candidates, and the result was that Howard received 59 votes and Doss received 56 votes. The election was held on the 6th day of October, and this action was instituted by Doss on the 8th day of October against Howard and Simon Delph, the superintendent of schools of Bell county. The summons was served on the 9th day of October, and answer was not filed by either Howard or Delph within 20 days after the service of the summons, but on the 17th day of November, thereafter, which was 39 days after the service of the summons, they filed a general demurrer to the petition. The appellant, Doss, objected to the filing of the demurrer, but his objections were overruled. On the 1st day of March, 1918, the court rendered a judgment, by which the demurrer was sustained, and, the appellant refusing to plead further, the petition was dismissed, to all of which Doss objected and reserved exceptions, and prayed an appeal to this court, and filed a copy of the record herein on the 29th day of March.

The appellant insists that the court was in error in permitting the appellees to file a demurrer to the petition, over his objection, at a time which was more than 20 days after the service of the summons, and in this contention we concur. The evident purpose and intention of the legislative authority in enacting the statutes which provide for and govern contested elections was to provide a plan for the trial and determination of proceedings of this kind expeditiously, to the end that one duly selected to fill an office should be permitted to perform its duties and to receive the emoluments, and that the interested communities should be secure from protracted disturbances as the result of the contest of elections and the subsequent uncertainty of knowing the results. This court has consistently denied to litigants, in cases involving contests of elections, the benefit of a pleading which was not filed within the time prescribed by the statute which governs the subject. Section 1596a, subsec. 12, Ky. Stats., fixes the time within which the answer of a contestee must be filed as within 20 days after the service of summons, and the reply must be filed within 10 days thereafter, and further subsequent pleadings shall not be allowed. The statute does not mention a demurrer by that name, and makes no provision for the filing of a demurrer in such a proceeding, but there seems no good reason why a contestee may not make an issue of law by the filing of a demurrer, but, if he elects to do so, it must be considered as his defense, or one of the grounds of his defense, all of which, if relied upon, must be preferred within 20 days after the service of the summons. Such defenses as a contestee may have under the statute must be considered as embraced within the terms "his answer." Hence, if a contestee fails without any good cause to offer any defense within the time prescribed, he thereby waives the right to interpose a defense based upon any kind of a pleading. Hence the court should have, in the instant case, refused to permit the filing of the demurrer at the time it was offered, and should have rendered judgment between the parties upon the pleadings, which consisted of the petition only. The allegations of a pleading, in an action contesting an election, do not have to be proven when not denied, as in any other action where a statute does not exist, which requires that an allegation be proven, though not denied.

The character of a judgment which should be rendered is determined by the sufficiency of the facts alleged in the petition or deemed to exist because of the default and the application of the law to such facts. Of course, if the averments of the petition were not sufficient to show a cause of action, the appellant was not entitled to have the relief sought by him. He was only entitled to the relief within the fair scope of the allegations and prayer of the petition. The petition, while inartifically drawn, substantially alleges, when all of its averments are considered, that the appellant and appellee Howard were opposing candidates for trustee at the election upon the day and in the district stated in the petition, and that at such election the appellant received the votes of 56 qualified electors, while his opponent received the votes of 59 persons, and the election of his opponent was certified by the election officers to the county superintendent, Delph, but that only 42 of the votes received and counted for appellee were cast by persons who were eligible to vote, and that 17 of the votes received by and counted for appellee were cast by persons who were not legal voters and not entitled to vote, and that such 17 votes went to make up the 59 votes received and counted for appellee, and that hence the appellant was duly elected trustee instead of his opponent. The petition then sets out the names of the persons who were not legal or authorized voters, but whose votes were received and counted for appellee. They consist of eight men and ten women. He alleges that the reason of their ineligibility to vote was "that they, or a part of them," were not residents of the district; some of them minors, and they could not read nor write. It is insisted as the reason for the insufficiency of the petition that these averments amount to alleging that only one of the persons named was not a legal voter, and thus the petition showed upon its face that Howard had received 58 votes and the appellee 56 only, and hence had no cause of action. The petition, however, we do not think, is subject to this criticism when fairly read. It alleges that all of the persons named were illegal voters; certain of whom were nonresidents of the district, others of them were minors, and the others were unable to read or write, but all were ineligible to exercise the right of suffrage at that election for one or the other of the reasons stated.

The statute (section 1596a, subsec. 12) supra, provides that a contest of the election to an office within the choice of the voters of a district of a county shall be made by a petition filed in the circuit court, and the petition "shall state the grounds of the contest relied on and no other grounds shall thereafter be relied upon." This statute is the only authority for instituting such a contest. Formerly when a contest of this kind was heard by a board designated by law for the purpose and was instituted by giving a notice to the contestee, the statute provided, as it does now with reference to the petition, "that the notice shall state the grounds of the contest relied on," etc. In the case of Tunks v. Vincent, 106 Ky. 829, 51 S. W. 622, 21 Ky. Law Rep. 475, a demurrer was offered to the notice because it did not state the names of the alleged illegal voters, but set forth as the grounds of the contest that a specific number of illegal votes were received and counted for the contestee, at each of certain precincts, specifying the precincts. This court held that the notice sufficiently stated the grounds of contest, and that the demurrer was properly overruled, although the contestant could have been required to have given the names, if he knew them, of the illegal voters by a motion to require him to *891 make the notice more specific. Such should have been the course of appellees, in the instant case, if they desired more specific allegations with regard to the reasons for the illegality of the votes of the various persons, the votes of whom were alleged to have been received and counted without authority. The petition seems to have sufficiently stated the grounds of contest and to have stated a cause of action for the contest of the election of appellee Howard to the office. One of the specific prayers of the petition was that the appellant should be adjudged to have been duly elected to the office of trustee of the district. Hence the court, instead of dismissing the petition, should have adjudged appellant duly elected to the office in controversy, and rendered such judgment as would have entitled him to qualify as such.

The petition, it is true, alleges that the appellee Howard will qualify as trustee unless restrained, and prayed that he be enjoined from so doing. The allegation was surplusage in a petition for the contest of an election, and the prayer was for something to which appellant was not entitled. Where one has received a certificate of election to an office from the proper authorities, it constitutes prima facie evidence of his title to the office, and an injunction will not lie to restrain him from exercising the functions of the office pending a contest as to whether or not the holder of the certificate was really elected. Courts of equity are not invested with authority by the statutes providing for contested elections to proceed by writ of injunction for the determination of the right to the office, and they have no inherent authority to do so. The prayer for an injunction did not, however, affect the appellant's cause of action for the contest of the election and to be adjudged duly elected to the office sought, as the prayer of a plaintiff for more than he is entitled to does not destroy his right to that to which he is entitled.

The action was properly dismissed as to the appellee Delph. The averments of the petition affecting Delph are to the effect that unless restrained by injunction he will issue a certificate of election to his codefendant, Howard, and the prayer of the petition with reference to him is for an injunction restraining him from issuing such certificate of election. As county superintendent, he was without authority to issue or grant a certificate of election to Howard, and it would have been without any effect if he had done so, and, besides, Howard had already received a certificate of his election from the authorities authorized to grant it.

The judgment is therefore affirmed as to the appellee Delph, but is reversed as to the appellee Howard and remanded, with directions to proceed in conformity to this opinion.

Ky.App. 1918.
202 S.W. 888, 180 Ky. 413


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