167 Ky. 608 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
At the election held for trustee of the common school, on August 1st, 1914, in sub-district No. 4, in' Wolfe county, the appellant, John Rose, received seventy-six votes and the appellee, F. F. Cecil, received seventy two votes. A certificate of election to the office of trustee was duly issued to the appellant. Thereafter, the appellee filed a petition in the circuit court for Wolfe county against the appellant for the purpose of contesting his election to the office of trustee.
The petition, in substance, alleged the qualifications of appellee for the office; his candidacy, and that of ap>pellant; that he received seventy-two legal votes; that appellant only received sixty-four legal votes; that the officers of the election certified that he had received seventy-two votes, but certified that appellant received seventy-six votes; that twelve of the votes received by appellant were cast by persons who did not have the qualifications, which entitled them to vote at the election, and for that reason appellant had only received sixty-four legal votes; that the seventy-two votes received by] appellee were cast for him by white persons, who were over twenty-one years- of age and who could read and
The appellant, in due time, filed an answer and counter-claim, in which he traversed all of the allegations of the petition, and further plead facts showing Ms legal qualifications toehold the office of trustee. He also, alleged affirmatively that at the election he received seventy-six votes and that appellee received seventy-two votes, but that seventeen of the votes received, and counted for appellee were cast by persons who did not possess the legal qualifications which would entitle them to vote at the election of a trustee for the school in the district, and therefore should not be counted as having been received by appellee. He then specifically named six women who, he charged, had cast their votes for appellee and which were counted for him, and who, he alleged, were unable to read or write, and one of whom, he, also, alleged had not been a resident of the district for as much as sixty days next preceding the election. He, further, alleged that eight persons, whose names were specifically stated, had cast their votes for appellee, and whose votes were included in the seventy-two votes received by appellee, and that neither of the eight persons had resided for the sixty days preceding the election in the district, nor in the county of Wolfe for six months preceding the election, and one of whom had not been a resident of the State of Kentucky for one year preceding the election. Three other persons, who had cast their votes for appellee, and whose names were specifically stated, the appellant alleged, were each under twenty-one years of age at the time of the election, and that the votes of all of said persons should be eliminated from the seventy-two votes received by appellee.
The appellee never filed any reply, and therefore never, by any pleading, controverted the ' affirmative allegations of the answer and counter-claim.
The appellant insists that the judgment should have been for him upon the pleadings in the cause, regardless of the proof, and if correct in this contention, the decision of all other questions in the case is rendered unnecessary. For this reason we will proceed to the consideration of this contention. The affirmative allegations of the answer and counter-claim, if taken as true, conclusively determine, that seventeen of the seventy-two votes received by appellee were cast by persons who were not legal voters and not entitled to vote. Six of them were women, of whom, it was alleged, that neither of them could read or write. Eight were alleged to be persons who had not resided for as much, as sixty days preceding the election in the district, and three of them were alleged to have been under the age of twenty-one years a,t the time of the election. Subtracting these votes from the seventy-two votes received by appellee would leave bim as receiving fifty-five legal votes. Conceding that the twelve votes received by appellant and challenged by appellee were all illegal votes, it leaves appellant as having received sixty-four votes, and elected to the office.
Section 126, of Civil Code, provides, that every material allegation of a pleading must, for the purposes of
Section 127, of Civil Code, defines a material allegation as follows:
“A material allegation is one which is necessary.'for the statement or support of cause of action or defense.”
There .is no reason given or attempted to be shown , why the affirmative allegations of the answer and counter-claim were not controverted by a reply, if such .alle- ■ gations were untrue. The appellee had full time and ■ opportunity to plead to .the answer and counter-claim if he-had desired to do so. The provisions of Section-126, ■ of the Civil Code, supra, are mandatory, and for sound reasons. Otherwise parties to a litigation would have to ..burden themselves with the labor and expense of taking proof upon subjects about which there is no controversy . and no issue made. The provisions of the Code, requir- . ing material allegations to be taken as true, unless specifically traversed, is but declaratory of the rule of .the common law upon the subject It is intended to exi edite the trials of controversies in the courts, by- en- . abling the courts to know what questions they are called . upon to decide, as well as to notify the parties what contentions they must be prepared to sustain with proof, as it would be idle for a litigant to call witnesses to prove . a contention which his adversary admits the truth of.
The appellee, however, insists, that in as much as he -alleged in his petition that the seventy-two votes received by him were cast for him by white persons who •were over twenty-one years of age, and who-had been ;■ actual residents of the district for more than sixty days, .next before the election, that the affirmative allegations of the answer and counter-claim, which specifically ■alleged that seventeen of said voters, specifying each of them by name, were not legal voters, and setting out the grounds of their ineligibility, respectively, did not allege any new matter with reference to them, and that the allegations were a mere affirmative denial of the things ■ said in the petition, and for that reason an issue was .made as to the eligibility of these voters, and no reply .was necessary in order to allow the taking of proof in ..regard to them, and to prevent the taking of the affirmasjtiye allegations of the answer and counter-claim-as true,
A reference to the provhions of sub-sectión 12, of Section 1596a,, Kentucky Statutes, which authorizes the action to contest the election of a school trustee, sustains the rule of pleading in such cases as announced herein. It provides that the petition “shall state the grounds of the contest relied upon, and no other grounds shall afterwards be relied upon.” It will be observed that no provision is made for the petition negativing any grounds of counter contest, which may be relied upon for a defense. It, also, provides that the answer “may consist of a denial of the averments of the petition (which are the grounds of contest relied upon) and may, also, set up grounds of contest against the contestant, and if grounds are so set up, they shall be especially pointed out and none other shall thereafter be relied upon by said party.” It, further, provides for a filing of a reply within ten days, and that its affirmative allegations shall be treated as controverted. It is apparent from these provisions that the grounds of counter contest are purely matters of defense, and must be treated as new matters, which must be controverted by a reply or taken as true.
It is, therefore, adjudged that the judgment appealed from be reversed, and the cause remanded with directions to set aside the judgment appealed from, to adjudge that appellant was duly elected to the office, and dismiss the petition of appellee.