192 Ky. 341 | Ky. Ct. App. | 1921
Opinion op the Court by
— Reversing.
The appellant and appellee were opposing candidates in . the August, 1921, primary election for the Democratic nomination for the office of jailer of Marion county. The officers of the election returned and the board of election commissioners for the county certified that the appellee, Alvey, received in that election 942 votes and that the appellant, Th arman, received 913 votes and the certificate of nomination was issued to 'the appellee. Two days after the county board canvassed the votes and awarded their certificate of nomination to the appellee, the appellant served notice of contest on him pursuant to the provisions of subsection 28 of section 1550 of the Kentucky Statutes, and two days thereafter and within the time prescribed -in that subsection another notice of contest was served on appellee setting up an additional ground to the one stated in the first one and each of them cited the appellee to appear and make defense on the 17th day of August thereafter. The appellee appeared at the appointed place and upon the day stated in the notices and entered motion before the circuit judge
Whether ground (a), which was sustaind by the court, is or is not sound we need not determine since there can be no doubt of the propriety of the court’s ruling in sustaining ground (b). The purpose in pleading, whether it be styled a notice or be designated by any other name, is'to inform the opposing litigant with reasonable certainty the grounds of complaint or defense so that he may be prepared to meet them on the trial. In furtherance of that purpose it has been uniformly held by us that in election contest cases where the ground was the casting of ineligible votes that the pleader should name the persons whose votes he questions upon that ground as well as" the facts which rendered them ineligible. Weller v. Menninghoff, 155 Ky. 77; Horton v. Botts, 158 Ky. 11; Clark v. Robinson, 159 Ky. 25; Francis v. Sturgill, 163 Ky. 650; Thompson v. Stone, 164 Ky. 18; Johnson v. Little, 176 Ky. 505; Hardy v. Russell, 181 Ky. 287, and Kash v. Hurst, 189 Ky. 233.
We therefore conclude that in the absence of an offer of appellant to amend his second notice the court properly struck it from the record.
The sole ground of contest stated in the first notice was that the appellant received more legal votes in the primary election for the nomination for the office involved than did appellee and that “an accurate, fair and impartial count of the ballots legally cast for each of us would have shown that I (appellant) received more legal
•In the .case of Snowden v. Flanery, 159 Ky. 568 (which was a contest growing out of a regular November election) the only ground alleged by the contestant was that the officers of the election, by mistake or oversight, counted and certified for the contestee more votes than he in fact received and a less number of votes for contestant than he in fact received, and that those corrections would give the contestant a majority of the votes cast. The first question before the court in that case was whether the allegations were sufficient to authorize a recount of the votes in the contested precincts (which in this case are all of them in the county), and in disposing of that question the opinion says:
“Upon a thorough and full consideration of the question, the court has reached the conclusion that a recount may be had upon the naked allegation of mistake in the counting and certifying of the vote; and, in a large measure, we have been aided in reaching this determination by the fact that we believe-a most salutary influence will be exercised in favor of the honesty of elections and in the prevention of election frauds by the promulgation of the ruling herein announced.
“The trend of the best modern thought is along the lines of establishing beyond cavil the absolute fairness and honesty of the elections whereby is indicated the will of that large percentage of the people of the Commonwealth who do not actively participate in the operation of the election machinery further than the casting of the individual vote, to the end that the people shall have an abiding and confiding faith in the integrity of their elections, respect for the officers chosen at those elections, and show willing obedience to the law as administered by them. ’ ’
We are aware that there is a dictum contrary to the views above expressed in the opinion in the case of Pace v. Reed, 138 Ky. 605, but it is based upon an erroneous quotation made from the case of Edwards v. Logan, 114 Ky. 312. The learned judge who wrote the opinion in the Pace case was evidently misled into making the supposed quotation from the Edwards case through error of counsel in preparing their briefs in the former case. However this may be, the Snowden opinion is the latest utterance of this court upon the subject; and it must also not be overlooked that each of the cases referred to was a contest of a regular election where the pleadings required are the same as .are required in other actions, while this proceeding is only contesting the nomination in a primary election where the initial pleading is only a notice and which under the statute is required to state only “the grounds of such contest.” Subsection 36 of section 1550 is a part of the act providing for primary
Wherefore, the judgment is reversed with directions to overrule the demurrer to the first notice and for proceedings consistent with this opinion.