Murphy v. Levengood

31 Mont. 34 | Mont. | 1904

MR.' COMMISSIONER CALLAWAY

prepared the following opinion for the court:

This action was brought by the appellant to contest the election of respondent to the office of county assessor of Deer Lodge county, and is a result of the election held in November, 1902. It is brought under the .provisions of Sections 2010 to 2025, inclusive, of the Code of Civil Procedure. To the complaint, or statement of contest, the respondent interposed a motion asking that the complaint be stricken from the files, and the contest dismissed, “for the reason that the grounds upon which the contest is based are alleged upon information and belief, and for the reason that the verification to said petition is made upon information and belief, and is not in accordance with the statute in such cases made and provided.” The court sustained the motion and entered judgment thereupon in favor of the respondent. Erom the judgment this appeal is prosecuted.

xkn inspection of the verification to the complaint discloses that it is in practically the same form as that appended to the complaint in Lane v. Bailey, 29 Mont. 548, 75 Pac. 191.

The case of Kirk v. Rhoads, 46 Cal. 398, referred to in Lane v. Bailey, is applicable to this case upon both of the grounds urged in tbe motion, and we therefore quote tbe following language from it: “Tbe affidavit in tbis case was in tbe ordinary form of a verification of a pleading, and averred that tbe statement was true, except as to matters therein set forth on information and belief, and as to those matters affiant believed it to be true. Tbis was a substantial compliance with the statute. To bold that tbe contestant must make oath to tbe absolute verity of every averment of tbe statement would prevent tbe contest of an election in almost any conceivable case, and would Work a practical abrogation of a beneficial law. From tbe very nature of tbe ease, many, and frequently most, of tbe essential facts must come to tbe knowledge of tbe contestant through tbe statements of others; for be cannot be present at tbe various polling places to observe tbe conduct of tbe officers of election. We think tlie object of tbe provision was merely to require a verification of tbe statement, but not to prescribe its form or terms. Tbe object of tbe law is gained when the affidavit is in tbe ordinary form of a verification of a pleading.”

Tbe Supreme Court of Indiana in Curry v. Baker, 31 Ind. 151, said that to construe the language of tbe statute as-is contended by respondent, “and require tlie affidavit to be founded alone upon tbe personal observation of tbe contestor, would involve a practical change in tbe title of the act, so that, it should read, ‘An Act to prohibit tbe contesting of any election.? ” (And see McCrary on Elections, Section 433.)

In McCrary on Elections (4th Ed.), Section 431, it is said: “It may be stated as a general rule, recognized by all tbe courts of tbis country, that statutes providing for contesting elections are to be liberally construed, to tbe end that tbe will of tbe people in tbe choice of public officers may not be defeated by any merely formal or technical objections.”

It is thus apparent that tbe objections lodged by tbe contestee against tbe complaint are untenable.

We have examined tbe complaint to ascertain whether tbe court was correct in sustaining tbe eontestee’s motion upon the ground that the complaint is bad for want of substance.

Section 2021, Code of Civil Procedure, provides that the court may dismiss the proceedings if the statement of the cause or causes of the contest is insufficient. Section 2016, following, providesi “No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court fox 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.”

While it is true that the complaint in some particulars is subject to criticism as being indefinite, yet we cannot say that it does not state a cause of action. All that the statute requires is that the contestant shall definitely apprise the contestee of the charges relied upon, so that he may be prepared to meet them with appropriate proof. Except in one or two instances, which are not fatal to the - maintenance of the action, we think the contestee is advised with certainty to a common intent of the charges which he is to meet.

We are therefore of the opinion that the judgment should be reversed, and the cause remanded for further proceedings.

Pee Curiam. — For the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.

He. Justioe Milburn, not having heard the argument, takes no-part in this decision.