(concurring).
On Motion for Rehearing, contestee vigorously asserts that contestant’s allegations fail to state a legal claim for relief as an election contest under the Texas Election Code. He cites cases such as Moore v. Pittman, 280 S.W. 873 (Tex.Civ.App.1926, no writ), and Roberts v. Hall, 167 S.W.2d 621 (Tex.Civ.App.—Amarillo 1942, no writ), which state the requirement that a contestant in an election contest must allege with particularity the identity of the officials involved in the alleged fraud or irregularity, the votes which were influenced and how this affected the outcome of the election.
Contestant, on the other hand, points out the difficulty of obtaining specific information in a large city-wide election, particularly where voting machines have been used, and urges the relaxation of pleading requirements upon the authority of cases such as Meriwether v. Stanfield, 196 S.W. 2d 704 (Tex.Civ.App.—Beaumont 1946, no writ), and Plambeck v. Cisco Independent School District, 363 S.W.2d 878 (Tex.Civ. App.—Eastland 1963, no writ).
A motion for summary judgment may be granted on the pleadings where the plaintiffs petition fails to state a legal claim for relief. Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540, 543 (Tex.1971). However, as a general proposition, a motion for summary judgment does not take the place of special exceptions and the pleadings should be settled prior to the hearing of such motion. Andrews v. Austin Motor Truck Co., 259 S.W.2d 772, 774 (Tex.Civ.App.—Austin 1953, no writ); Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974). The *14sequence of procedural events presents a close question as to the applicability of this proposition.
The trial court sustained contestee’s special exceptions and required contestant to replead by March 11, 1974 specifically alleging the names, addresses, precinct numbers and polling places of voters whose votes allegedly had been illegally or fraudulently cast, how many such votes were cast and how such votes would materially have affected the outcome of the election. Subsequent to this ruling, which set the standard of pleading in the case, contestant filed a second amended original petition listing identified precincts and voters but also carrying over the general allegations of fraud and illegality contained in his original petition.
On April 25, 1974 contestee filed his first motion for summary judgment, giving notice that such motion would be heard on May 6, 1974. In this motion contestee made reference to the court’s ruling on special exceptions and asserted that contestant had failed to state a cause of action since an analysis of his allegations failed to show a sufficient number of questioned votes to have changed the outcome of the election. The day following service of this motion, April 26, 1974, contestant filed his third amended petition which contained additional specific allegations but also carried forward the general allegations of fraud and illegality. In response to this petition, contestee on May 23, 1974 filed his second motion for summary judgment in which he again asserted that contestant’s pleading failed to allege a legally sufficient basis for an election contest under the Texas Election Code.
As shown in our original opinion, paragraph CVIII of contestant’s third amended petition urges that “illegal and fraudulent votes” were procured on behalf of contes-tee by the offering of cash bonuses to precinct judges who obtained the highest percentage of voters in their precinct on election day and who allegedly influenced voters in favor of contestee. As stated in our opinion these allegations appear vulnerable to special exceptions in that they fail to identify the election officials involved, the votes influenced by them and how this materially affected the outcome of the election. Although no additional special exceptions were levied against this particular paragraph, its allegations did not comply with the repleader requirements of the court’s prior ruling in the case. The question then is whether these allegations may be considered as stating a legal claim for relief precluding disposition of the case upon motion for summary judgment.
Election officials are presumed to have done their duty and it is the contestant’s burden in an election contest to allege and prove by specific allegations that the conduct of the election abrogated the will of the people. Jordan v. Westbrook, 443 S. W.2d 616, 618 (Tex.Civ.App.—San Antonio 1969, no writ); Moore v. Pittman, supra. It is important that our courts diligently protect against such contests being aired solely for political purpose and that such contests be heard only upon triable issues developed through appropriate pretrial procedures.
However, where special exceptions have been sustained and the plaintiff fails or refuses to replead in accordance with the ruling of the court, the proper method of disposition is by order dismissing the case with prejudice. Farias v. Besteiro, 453 S. W.2d 314, 317 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). A summary judgment is not the proper remedy in such a case. Meyer v. Wichita County Water Imp. Dists. Nos. 1 and 2, 265 S.W. 2d 660 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.).
Where the petition states a legal basis for relief, even though not pleaded with the particularity which may be required upon exception, the petitioner’s claim should not be summarily denied. The entry of a summary judgment, in effect, precludes further opportunity to amend. Tex*15as Department of Corrections v. Herring, supra. Since it does not appear from the face of contestant’s petition that a legal claim for relief cannot be stated upon further repleader in conformity with the trial court’s order, a summary judgment should not have been rendered on the pleading.
I concur in the denial of contestee’s motion for rehearing.