115 So. 164 | Ala. | 1927
Appellee's election may be contested upon the same grounds and in the same manner provided for contesting the election of a probate judge. Code 1923, § 1884. Such election may be contested for the cause set out in subdivision 2 of section 545 of the Code 1923. The allegation that contestee was not eligible to said office at the time of said election is an averment of fact conforming to the language of the statute. McDonnell v. Murnan Ship Bldg. Corp.,
Lyons, Chamberlain Courtney, and Outlaw, Kilborn Smith, all of Mobile, for appellee.
The election of a commissioner of the city of Mobile is not subject to contest upon the ground that the successful contestant was not eligible to the office at the time of said election. The violation of section 586 by a candidate for the office of city commissioner is not ground for contest of such election. No possible injury was done the contestant by sustaining the motion to dismiss, as no ground of ineligibility was alleged which would have been ground for contest. Watters v. Lyons,
The Corrupt Practice Act does not per se authorize a contest of the election as for a violation of any of the provisions of same, and the contestant must rely upon section 1884 of the Code of 1923, which authorizes a contest of this election upon the same grounds as would authorize a contest of the election of a probate judge. Section 545 of the Code of 1923 sets forth the grounds upon which the office of probate judge may be contested, and ground (2), the only one having any bearing upon this case, says: "When the person whose election is contested was not eligible thereto at the time of said election." This means when the person was incompetent or disqualified at the time of the election, and not when he became disqualified because of illegal or improper conduct in and about the election. Finklea v. Farish,
We think the general averment or specification (a) sets up a ground of contest of the election as provided by section 545, that is, that Hartwell was not eligible at the time of the election and that under section 1884 this election can be contested, but the grounds or facts showing that he was not eligible should have been set forth. True, we have many cases holding that the use of the language of the statute will suffice and that it is safer to adopt the language in some *241
instances, such as setting forth statutory crimes, etc., but we do not think that rule should deprive a contestee from being informed of the grounds or reasons for his non-eligibility. This defect, however, should have been taken advantage of by demurrer, instead of by motion to strike, in order that contestant may have been given an opportunity to amend. Section 9458 of the Code of 1923. Motion to strike should be granted only where the pleadings are unnecessarily prolix, irrelevant, frivolous, or unnecessarily repeated. Mobile Co. v. Sanges,
We think the writer of the opinion in the case of Watters v. Lyons, supra, in dealing with paragraph (4) of the contest in said case, overlooked section 1884 of the Code of 1923, section 1168 of the Code of 1907, paragraph 2 of section 545 of the Code of 1923, and section 455 of the Code of 1907, and said Watters Case is to this extent modified.
For the error above pointed out, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
All the Justices concur.