Hamer v. Howell

McCARTY, J., after stating the facts, delivered the opinion of the court. It is urged that the trial court erred in finding against contestant on the charges made that respondent promised Bur-dick that he would appoint him official stenographer and promised to appoint Hooper assistant stenographer. Not only is there a substantial conflict in the evidence on this point, but we are of the opinion that the finding made on this issue is supported by a clear preponderance of the evidence. It is contended, however, that while there may be a conflict in the evidence respecting the alleged promises made Burdick and — 151 — Hooper, Dye’s testimony respecting the promise Howell made to him stands nneontradieted, and that, therefore, the court should have found on this issue in favor of contestant, and that the court erred in failing to so find. The record shows that Dye was one of the active workers and campaigners for the Republican Party in Weber county, and, at the request of Halverson, the county chairman sent him out to make campaign speeches. According to Dye’s own testimony he made campaign speeches, and worked for the Republican ticket, both before and after the time he claims Howell promised to appoint him assistant stenographer. In view of this, and the fact that there was no such an office in existence in this state as assistant stenographer, and the further fact that Dye was not a stenographer, and in no sense qualified to perform the duties required of a stenographer, it was for the trial court to determine the probability or improbability of Howell having made such a promise, a promise which he must have known would be impossible for him under any circumstances to fulfill and make good. Furthermore, the trial court had an opportunity to observe the appearance and demeanor of the witness while testifying, and was therefore better able than we are to determine the weight, of his testimony. In fact there were some matters elicited on his cross-examination which . tended to show that he had taken more than ordinary interest in the ease, and that his sympathies were very pronounced in favor of the contestant. In view of all these facts and circumstances, we are not prepared to say that the trial court erred in finding this issue in favor of the eontestee. There are numerous other allegations in the complaint charging bribery and attempted bribery by Howell and those who, It is claimed, acted for him. There is not only a substantial conflict in the evidence relating to these charges, but the evidence offered by contestant in support of them is much weaker and more unsatisfactory than that which we have reviewed and considered. We therefore, deem it unnecessary to further review or discuss this branch of the ease. Section 918, Rev. St. 1898, which is set out in the foregoing statement of facts, provides that when the contest is based on the ground that illegal votes — 152 — were received and counted for contestee, which, if rejected, would change the result, and that “No testimony can be received of any such votes unless the party contesting such election deliver to the opposite party at least three days before such trial a -written list of the number thereof, and by whom given . . . which he intends to prove on such trial; and no testimony shall be received of any such votes except such as are specified in such list.” In compliance with this section of the statute contestant served upon contestee, and filed in the case, a list of the names of about forty persons who, it is alleged, cast illegal votes. Contestant, in effect, abandoned this ground of contest, as the evidence introduced was confined to a few only of the persons mentioned in the list. The sixth and seventh grounds of contest were also in effect abandoned, as no evidence was introduced in support of them. This disposes of the questions raised by the pleadings in the case. Appellant insists that the court erred in its. rulings on questions that were presented during the trial, but which, the record shows, were.entirely outside of the issues raised by the pleadings. Contestant challenged many of the ballots on the following grounds: (1) That the ballots cast in Morgan and Davis counties were not secret nor constitutional ballots because printed on a quality of paper through which the printed matter and the markings of the voters could be discerned upon the back thereof. (2) That upon the Socialist Party emblem on all the votes cast in Davis county were printed in violation of law, the words, “Workers of the World, Unite.” (3) That in one precinct in Morgan county the names of the Republican candidates for justice of the peace and constable were not printed on the Republican ticket, but were written thereon in blank spaces left for the purpose before the ballots were handed to the voters. (4) That many of the electors in the various polling precincts in the district, in preparing their ballots, failed to make a cross under the party emblem, but made crosses opposite the names of the candidates voted for and scratched the names of some of the corresponding candidates on the other tickets, — 153 — and that, thereby, the ballots so marked and voted could be identified, and'that such markings and scratches constituted distinguishing marks. (5) That many of the ballots voted bore distinguishing marks consisting of ink blotches. These challenges were all denied and the ballots- counted. The ruling of the court in denying the challenges is now assigned as error. The complaint in this case contains no allegation that any ballot or ballots were printed on an inferior quality of paper, so that the markings of the voters could be seen and understood upon the back thereof; neither does it contain an allegation that matter other than that allowed by statute was printed or written on any of the ballots-, nor that any of the ballots cast contained distinguishing marks by being defaced, mutilated, or blotched, or because of the way in which they were marked by the voters. Section 91-9, Rev. St. 1898, provides : •‘No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which such election is contested.” As we have stated, there is no allegation ftr the complaint respecting any of the matters included within or covered by the challenges. In fact it is entirely barren of any fact or statement which in any way tends to advise defendant that contestant intended to question the validity of the ballots objected to on any one or more of the particular grounds upon which the challenges were based. While the weight of authority holds that statutes governing contested elections should be liberally construed in order that justice may be done, we do not understand that this rule of liberal construction may be extended so as to overturn the well-established rule of practice that the evidence must be confined to the issues raised by the pleadings, and that the judgment rendered must conform thereto. And our attention has been called to no' case which holds that in proceedings of this kind, or, for that matter, in any other class of civil actions, questions may be tried and determined which are entirely outside of the issues. In the case — 154 — of Boardman v. Griffin, 52 Ind. 101, in the course of the opinion, tbe court says: “The pa.rties must recover upon the allegations of the pleadings. They must recover secundum allegata et probata or not at all. It must be so from the nature of things, so long as our mode of administering justice prevails. It would be folly to require the plaintiff to state his cause of action and the. defendant to disclose his grounds of defense, if, on the trial, either or both might abandon such grounds and recover upon others which are substantially different from those alleged.” This case is cited with, approval in Borders v. Williams, 155 Ind. 36, 57 N. E. 527, where it is said: “We perceive no ground for the contention that in contested election cases the procedure is more liberal than on the trial of other civil causes with respect to the issues and evidence. The statute requires the contestor to specifically state in his complaint the grounds of contest relied upon.” (Sowles v. Clawson, 28 Utah 74, 76 Pac. 1067; Tuckfield v. Crager, 29 Utah 472, 82 Pac. 860; 11 Enc. Pl. & Pr., 868; Bailey v. Hurst, 113 Ky. 699, 68, S. W. 867; Lehlbach v. Haynes, 54 N. J. Law 77, 23 Atl. 422; Gillespie v. Dion, 18 Mont. 183, 44 Pac. 954, 33 L. R. A. 703; Edwards v. Logan (Ky.), 69 S. W. 800; Whitney v. Blackburn (Or.), 21 Pac. 874, 11 Am. St. Rep. 857.) Counsel for appellant contend that the matters embraced in the challenges referred to come within and are covered by the first alleged ground of contest set forth in the complaint and designated as “ground No. 1,” and which is set out in full in the foregoing statement of facts. By an examination of that paragraph of the complaint, it will be seen that it alleges- a conclusion only, and contains no statement of fact. Now the same general rule of civil pleading which requires the plaintiff to set forth in his complaint the facts upon which he bases his right for relief govertis in this class of cases. In fact subdivision 4, section 917, Rev. St. 1898, provides that the contestant shall set out in his petition “the particular grounds of contest,” and section 919 in effect provides that this shall be done, “with such certainty as will advise the ‘defendant of the particular proceeding or cause for which such election is contested.” In 15 Cyc. 405, this same rule is announced as follows: — 155 — “In statutory proceedings to contest an election the contestant’s initial pleading, whether it be termed a declaration, complaint, petition, or notice and statement, must set forth the particular facts relied upon as invalidating the election of his opponent in order that the latter may he apprised of the case he has to meet. Thus an allegation that the contestant received more votes than the conteste© is an averment of a con-elusion, . . . and when pleaded as an independent ground of contest will be regarded as surplusage. . . . General averments of fraud, mistake, intimidation and the like, are but conclusions of law. The particular facts relied on must be set forth.” (Smith v. Harris, 18 Colo. 274, 32 Pac. 616; Menten v. Shuttee [Okla.], 67 Pac. 478; Soper v. County Commissioners, etc. [Minn.], 48 N. W. 1112; Lehlbach v. Haynes, supra.) Because of a lack of sufficient and proper allegations in tbe complaint tbe contestant was not in a position to base a contest on any of tbe grounds specified in tbe challenges and was not entitled o bave litigated nor determined any sucb questions. Tbe ruling of tbe court being upon a subject-matter entirely foreign to the issues, tbe appellant is not in position to complain thereof. Tbe judgment is affirmed, with costs. BARTCH, C. J., concurs in tbe judgment. STRATTP, L, concurs.