Southerland v. Sandlin

On petition for rehearing.

Mabry, J.

In petition for a rehearing filed in this cause it is particularly insisted that there was error in our conclusion on the first assignment of error predicated upon the ruling of the Circuit Court denying the motion of plaintiff in error to strike the amended petition of defendant in error. It is alleged in substance that in our opinion we overlooked and did not consider the fact that the Circuit Court sustained a demurrer to the original petition, therbey holding the grounds of contest therein alleged to he insufficient, and that 'the amended petition alleged the same matters charged1 in the original held to be insufficient, except in the fourth paragraph which set up an entirely new and distinct ground of contest after, the expiration of the time provided by the statute for filing a *352petition of contest setting forth the particular grounds on which a contestant intends to rely to establish his right to an office. The petition for rehearing states “that all of said grounds in said amended petition contained with the exception of paragraph four thereof, were identically as those set up and alleged in the original petition hereinbefore referred to, and to which the court below had formerly sustained' a demurrer, and that under the rules of pleading and practice a motion to strike said amended petition was proper, in that the same contained the same matters set forth in the original petition, and the demurrer having been sustained thereto and setting forth and alleging in paragraph four thereof the new matter referred to constituting the only ground of contest shown, and said new matter and ground of contest having been filed after the statutory time had elapsed.”

The court did not overlook the fact that a demurrer hadi been sustained to the original petition, and the opinion states that “comparing the original and amended petitions we do not find any new ground of contest in paragraph three, hut the fourth paragraph of the amended petition contains new matter as an additional ground of contest in election district number two, ¡specified in paragraph one.” Counsel have fallen into error’ in assuming that all the .grounds in the amended petition, with the exception of paragraph four, are identically.the same in allégation as those contained in the original petition. The court sustained a demurrer to the original petition because the grounds of contest relied on were too 'indefinitely ¡stated, but the amended petition is is ueh more definite in this respect. The court denied a motion to strike the amended petition because the grounds of *353contest therein alleged, except in paragraph four, were identically the same as those set up in the original petition, and that the ground! of contest alleged in paragraph four was sought to be incorporated by amendment after tire time provided in the statute for filing a petition of contest. No argument was made here that the grounds of contest in the amended petition were alleged identically, or in substance, as in the original petition, but the only contention was that the entire amended petition should be stricken because a new ground of contest was brought forward by way of amendment after the period when a petition of contest can be filed under the statute. The court did not assume that the ground® of contest stated in both petitions, except in paragraph four of the amended one, were in substance the same in allegation because to have done so would have beén contrary to the facts, and it was unnecessary and improper under the rule to discuss this, phase of the motion because it had been abandoned in the argument. The court fully considered the only contention made under the motion, to the effect that the petition should be stricken because a new ground of contest had been incorporated therein twenty-five days after the canvass by the county canvassing board of the election returns, and .reached the con-. elusion that the objection urged should have been confined in a proper way to the ground deemed to have been improperly incorporated into the petition, and. that if the court had refused to eliminate it, the question would have been presented whether an entire new ground of contest can under our statute be interjected into the proceedings by amendment after the expiration of the time mentioned. It is quite evident that a petition con*354taining several sufficient grounds of a .contest should not be stricken fnomi the files because it contains one insufficient ground!, or one not authorized by the statute. Counsel having abandoned by not arguing the grounds of the motion that the grounds of contest, except in parar graph four, were identically alleged in both petitions, and it appearing to the court that the grounds alleged in the amended petition are sufficiently definite to authorize an investtigation as -to the result of the election, it was not necessary to- say anything about any ground of the motion not argued.

In this case the court has examined carefully every point that has been presented in such a way as we could, consistently with our rules, consider.

The petition for rehearing is denied.