97 Neb. 721 | Neb. | 1915
At the general election, April 7, 1914, there was submitted to the voters of the village of Newman Grove the question of license or no license for the sale of intoxicating liquors. The election board received and counted 233 votes, of which 117 were for and 116 against license. At the
Relator filed a motion to strike certain parts of the answer. The third paragraph of his motion is as follows : “The relator further moves the court to strike out all of paragraph 4 of said answer because the same is the statement of a conclusion and not the averment of an issuable fact; said paragraph has reference to a contest proceeding instituted in the county court of Madison county, Nebraska, but in no manner connected with the subject and .purpose of this action, and it is not averred that the question involved therein has become res adjudicada, nor do the matters therein stated constitute a defense or an excuse for the failure of the respondents to perform their duty as averred in the petition.”
While this pleading is denominated a motion, we think the third paragraph is clearly a general demurrer to the fourth paragraph of the answer, on the ground that it does not state a defense to plaintiff’s action, and it will be treated as such. The reply to the answer and return of the members of the election board is a general denial of every affirmative allegation therein contained. The trial court found that the election board duly canvassed all the votes cast at the election on the license question; that, in canvassing the same, they canvassed and considered the one ballot in controversy as a mistaken ballot, rejected the same, and did not count it for or against the license proposition ; further, that the relator has a plain, adequate remedy at law to contest all errors, etc.; and entered judgment in favor of the respondents against the relator and dismissed his action with costs. From this judgment the relator appeals, and, from ihe ruling of the court striking out paragraph 4 of their answer, the-respondents, the members of the election board, present a cross-appeal.
We do not deem it necessary to consider relator’s assignments of error seriatim, for the reason that in our judg
of the other while such proceeding is pending. State v. Matley, 17 Neb. 564, State v. North Lincoln Street R. Co., 34 Neb. 634, and Monroe v. Reid, Murdock & Co., 46 Neb. 316, 331, where the same rule is announced, and State v. North Lincoln Street R. Co., supra, is cited and followed, See, also, Bartley v. State, 53 Neb. 310, 322, where the two last above cases are cited with approval, as is also done in Spencer v. Johnston, 58 Neb. 44, 48. In State v. Matley, supra, at page 568, Maxwell, J., speaking for the court in re the two remedies, said: “He may contest the election, however, instead of proceeding by mandamus, and may have sufficient cause for doing so, as where illegal votes were cast' for his competitor. But whatever the cause, having chosen his remedy, he must exhaust that before instituting other proceedings. The whole theory of our civil procedure is to avoid a multiplicity of suits, hence the plea of another action pending between the same parties and for the same cause of action is a good plea in abatement. A proceeding to contest an election is substantially an action, and, as it was pending when this proceeding was instituted, that remedy must be exhausted before relief will be granted in this.” In State v. North Lincoln Street R. Co., supra, in the second para,graph of the syllabus we held: “The plea of the pendency of another suit in bar is applicable to proceedings in mandamus.” In. the seventh paragraph of the syllabus in Monroe v. Reid, Murdock & Co., supra, we held: “The plea in abatement of another action pending in the same court between the same parties, regarding the same subject matter, and in which the relief sought is practically the same, is a good defense to a second ac
Treating that part of the motion of relator, which assails the fourth paragraph of the answer of the respondents, as a demurrer, the fact stands admitted that at the time this action was commenced, on June 8, 1914, there ■was still pending and undetermined, in the Same court, a proceeding that had been instituted on or about April 27, 1914, by the relator in this action as contestant in that, and against the same parties who are respondents in this action, to contest the same election upon the liquor license proposition that is involved in this action. This being true,, relator can obtain in that contest proceeding a full and complete investigation and decision of all of the questions which he raises in this action. Having elected to travel that road, he should be required to travel it to the end. This conclusion disposes of the two points: ■ (a) That the court erred in sustaining the demurrer of the members of the village board; and (b) in refusing to permit the ballots of McElhoes and Ward to be taken from the ballot box and used in evidence.
Upon a consideration of the whole case, we think the district court was right in disposing of the case on the ground stated, in its judgment; but, if that point were in doubt, there can be no doubt but that upon the record before us no other judgment could have been properly entered than the one complained of.
Affirmed.