103 S.W.2d 63 | Ark. | 1937
Appellant, appellee and Monroe Young were rival candidates for the office of sheriff of Garland county in the democratic primary election held on August 11, 1936. On the face of the returns appellee was declared the nominee, he having received 4,878 votes, whereas appellant received only 1,644 votes, and a certificate of nomination was issued to appellee. Within tell days appellant instituted this proceeding to contest appellee's certificate of nomination. His complaint alleged that he was opposed by appellee and Monroe Young and that he and appellee each was credited with the number of votes above stated, but that the latter "received less than were credited to him and the plaintiff received more than were credited to him, and if the returns could be purged of the illegal votes, the plaintiff would be the nominee." Appellant's abstract. It is then alleged that a political machine is in control of the elections in said county and elects its machine candidates to all the county offices by fraudulent and illegal means, and proceeds to detail the methods and means adopted by the political machine in great detail, all of which, if true, portrays a very bad state of political affairs in Garland county. The complaint is quite lengthy and we deem it unnecessary, for the purposes of this appeal, to set out the further allegations thereof, except to state that the third candidate, Monroe Young, was not made a party to the action, and was not mentioned in the complaint, other than as above stated, and the number of votes received and credited to him was not set out. The only reference to Monroe Young in the complaint is that he was a candidate, and that he, appellant, received more legal votes than either of his opponents.
In apt time appellee filed a motion to dismiss on the following grounds:
1. That appellant was not a qualified elector.
2. That the complaint was not supported by the affidavits of ten qualified electors.
3. That Monroe Young, the third candidate, was not made a party to the action, and, although he received a *801 substantial number of votes, the complaint fails to state the number of votes he did receive, and hence no allegation which discloses whether appellant received a plurality of the votes.
The court heard testimony on the motion to dismiss and thereupon sustained the motion on the first and third grounds thereof, as above set out, and dismissed the complaint, although appellant had, on September 19, more than ten days after the certification, sought to amend his complaint by setting out the number of votes received by Monroe young, and alleged that the failure to do so in the original complaint was due to a clerical error in copying same. Wherefore this appeal.
In Hill v. Williams,
In Moore v. Childers,
The only case in anywise in conflict with the above is the recent case of Hailey v. Barker, ante, p. 101,
The judgment is, therefore, affirmed.
SMITH, C.J., disqualified and not participating.