134 A. 477 | Pa. | 1926
At the municipal election held in November, 1925, for the Borough of Miners Mills, John J. Lavin, according to the returns, received six hundred and sixty-five votes and Thomas Ayre six hundred and eighty-six. Within the time and in the manner provided by law, appellants, on behalf of Lavin filed a petition in the lower court contesting the election. To all of which, except subdivisions one, two and three of paragraph five, Ayre was directed to and did file answer. Meantime the court refused contestants' petition for leave to amend the three subdivisions above mentioned and also respondent's request for a bill of particulars, and listed the case for trial on petition and answer. Contestants appeared at the time set but declined to offer any evidence and the trial court entered a final decree dismissing the petition at the costs of the contestants, who thereupon brought this appeal.
We find no cause for reversal. The Act of May 19, 1874, P. L. 208, 213, states: "The petition shall concisely set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal, and after *137
filing shall not be amended unless such amendment shall be allowed by the proper court or judge after notice to the other party and hearing, and, if allowed, reasonable time shall be given to answer." Furthermore, "A complaint of an undue election or a false return must be stated with clearness and precision, and the petitioners held to the exercise of due diligence to ascertain and specify the facts which, if sustained by proof, would require the court to set aside the result of the election. It was well said by Judge ALLISON in Weaver v. Given, 6 Phila. 65, that 'The court will not grope in the dark, or follow a contestant on a fishing expedition, in the hope of being able to find enough to enable him by the investigation to make out his case' ": Warren Borough Election,
Again, the order of the court, relieving respondent from answering the three subdivisions was harmless, as subdivisions four to nine, inclusive, of paragraph five, were adjudged sufficient, were answered by respondent and embrace the vital contention, to wit: that more than thirty unregistered citizens, twenty or more minors, twenty or more who were not qualified by payment of taxes, five or more who were not citizens of the district and five or more who were neither native born nor naturalized citizens, voted in the one district; also that more than fifty ballots were fraudulently and illegally voted and counted for Ayre in that district. Proof of the latter allegation alone or even the major part thereof would have resulted in Lavin's election. There was, therefore, a full opportunity given contestants to establish their case unembarrassed by any restrictions in the pleadings: that they offered no evidence was not the fault of the court or of the respondent.
The proposed amendments to the first, second and third subdivisions of paragraph five of contestants' petition were unnecessary to a trial upon the merits and properly rejected. Moreover, the allowance of an amendment in an election contest is a matter for the discretion of the trial court: Election Cases,
The decree dismissing contestants' petition is affirmed at their costs. *139