Southerland v. Sandlin

Mabry, J. (after stating the facts.) This case was referred by the court to its commissioners for investigation and they have reported that the judgment should be affirmed. After due consideration the court is of opinion that the judgment must be affirmed on the record presented, for the reasons now stated. The first error assigned is that the court erred in overruling the motion of the contestee to strike the amended petition. The only contention made under this assignment of error is that a new ground of contest was incorporated into the amended petition after the expiration of the statutory period within which an original petition specifying the particular grounds on which contestant intended'to rely to establish his right to the office was allowed to be filed under the statute. The statute provides that the “contestant shall, .within twenty-five days after the canvass by the county canvassing board of the — 347 — election returns for such office, file a petition in the office of the clerk of said court, and serve a copy thereof on the contestee by,” &c. * * * “He shall set forth in his petition the particular grounds on which he intends to rely to establish his right to such office.” Revised Statutes, 'Sec. 199. It is argued that after the demurrer was sustained to the original petition a new ground of contest was introduced into the amended petition filed after the expiration of the twenty-five days from tim date of the canvass of the returns of election, and the motion indicates that this new ground of contest is contained in paragraph three of the amended petition. Comparing the original and amended petigraph three, but the fourth paragraph of the amiended tions, Ave do not find any new ground of contest in para-petition contains new matter as an additional ground of contest in election district number two, specified in paragraph one. As the motion indicates the nature of the new matter of contest ¡sought to be presented as an objection, it may be regarded as applicable to paragraph four. The motion, it will be observed, is to strike the petition on the sole ground urged1 that an additional ground of contest was incorporated into the amended petition. If the ¡other grounds of contest stated in the petition are sufficient to call for an answer, it would be improper to strike the petition because of one insufficient ground. The objection argued here.should have been confined in a proper way to the ground deemed to have been improperly incorporated into the petition, and if the court bad refused to eliminate it, then the question would have been presented whether an entire new ground of contest can under our. statute be interjected into the proceedings by amendment after the expiration — 348 — of twenty-five days from! the canvass of the returns of election. This motion was properly overruled on the objection urged because it sought the dismissal of the entine petition, and was therefore too broad. The other grounds of the motion are not argued and need not 'be considered. The second! assignment of errors is expressly abandoned, and the tenth and eleventh are passed without argument, and must therefore be considered as abandoned. Six of the remaining assignments of error presented at the time of making up the transcript for this court, numbered three, four, five, six, .seven and eight, relate to orders and! rulings» of the judge in reference to the admission of evidence in the cause, and the other one, numbered nine, imputes to the judge .error in holding that the ballots counted and reported by the commissioner, to whom the cause was referred, were sufficient to overcome the presumption of the correctness of the several returns of the inspectors of the various contested election districts mentioned in the amended petition. All of these matters are in pais, and are required to be exhibited to this court by bills of exceptions made up in compliance with the rules prescribed for presenting such matters. We find! in the transcript bills of exceptions, but they are not made up so as to properly present the questions designed to be raised. In reference to the ordinary bill, the rule requires that while it need not contain the entire evidence adduced at the trial, it should contain such brief statement of the proofs as is necessary to show clearly the propriety or impropriety of the ruling of the court during the trial that is assigned as .error, or such portion of the evidence — 349 — ■that may have been presented on any issue of fact that may have 'been decided at any time prior or subsequent to the trial of the cause upon which error is assigned1. (Special rule 1 for the government of Circuit Courts in .the preparation of bills of exceptions and transcripts of records in civil cases.) The ordinary bill in this case contains no sufficeint statement of facts showing any .impropriety of the rulings of the court on the matters .sought to be presented by the bill as errors. Not only is thii® the case, but no assignment of error whatever was presented to the judge upon the making up of either the ■ordinary or evidentiary bill of exceptions. The rule referred to requires the plaintiff in error at the time of presenting a bill of exceptions to the judge to be made up .and settled for the appellate ¡court, whether such bill is to be made up from memoranda in writing of exceptions to rulings during the progress of the trial and signed! in open court, or otherwise, ¡to present with ¡such bill an assignment of errors covering all the points that he intends to present in and by such bill of ¡exceptions as grounds for reversal, and ¡such assignment of errors shall be the guide for making up the bill of exceptions, and shall be made a part thereof. And in reference to the evidentiary bill the rule provides that if any assignment of error presented to the judge is based upon the refusal of the . court to grant a new trial, on the ground that the verdict is contrary to the evidence, or not supported thereby, or if the ¡defendant in ¡error ¡shall demand in writing that all the testimony shall be reviewed for the purpose: of showing that an error of law, either as to the admission or rejection of testimony, or as to a charge given or refused, is, in view of the whole testimony, á harmless .■error, then an entirely separate and distinct bill of ex — 350 — ceptions of the evidence adduced at .the trial of the cause shall be made up and signed by the judge, to be known as tbe “evidentiary bill of exceptions.” The requirements of the rule in reference to the assignments of error in making np both bills of exceptions in this case were entirely disregarded, and for the defects stated we are unable to review the rulings of the court on the assignments of error made for the appellate court and argued by counsel. In reference to tbe ninth assignment set out there is no statement of facts showing that tbe court held, as assigned, the ballots counted and reported by the commissioner were sufficient to overcome the presumption of the correctness of the returns of the inspectors of the contested districts. What the report of the commissioner was is not therein stated, hut it does appear from the evidentiary hill that the judge had before him. at tbe bearing ballots, returns and a mass of testimony relating to tbe election in the contested districts, as well as returns from! the uncontested! ones. Jt does not appear, however, from the final decision rendered that there was any change of results in the uncontested districts. While the state of the record in reference to the a-v signments of error in making up the hills of exceptions is as stated above, we find a recital in the caption of the evidentiary hill signed by the judge that it was made up at the instance of the plaintiff in error in support of an assignment of error predicated upon the refusal of the court to grant a new trial on the ground that the findings and1 judgment of the court were contrary to the evidence. The eleventh assignment of error is that the court erred in overruling the motion of contestee to set aside — 351 — and vacate the alleged finding of the court, and- the final judgment of ouster consequent thereon, but this assignment of error is not noticed in brief of counsel for plaintiff in error, and must, therefore, under the settled rule of this court, be considered as abandoned.’ In view of this fact we do not now determine whether the recital of the judge in the evidentiary bill stated, in the absence of any record evidence of a sufficient assignment of erroq presented at the time of settling the bill, will authorize this court to review the ruling of the judge denying a mlotion for a new trial on the ground that the evidence is not sufficient to sustain a finding. For the reasons stated wie are of opinion that the judgment must be affirmed and it fe so ordered.