Certified questions from the Court of Civil Appeals for the First District, as follows:
"This cause now pending before us on appeal is an election contest brought by the appellant Bailey under the statute to contest the result of an election for the office of county judge, held in the county of Victoria in November, 1902, in which appellee, Fly, was declared to have received the greater number of votes. Certain questions have arisen therein which we deem it wise to certify for your decision.
"The action was instituted on December 2, 1902. Bailey's original pleading, after necessary formal allegations, contained as ground for contest averments in substance that the result as declared by the commissioners court gave contestee 949 votes, Bailey 946 votes, and Thurmond (the other candidate for the office) 473 votes. That in certain named voting boxes, certain votes were cast for him (contestant) which were not counted for him and he alleged valid reasons why they should have been counted for him. That certain named persons voted at certain named boxes and their votes counted for Fly; that they were not qualified voters and the reasons for their disqualification are set out. Contestant prayed for a hearing and recount and that the office be awarded to him.
"On the 12th day of December, 1902, contestee filed his answer. This consisted of demurrers, a general denial and special denials. Then *Page 429 followed allegations that if any of the voters named by contestant were in fact illegal and unqualified, they voted and were counted for Bailey and not Fly, and that the alleged rejected and uncounted legal votes were cast for him, the contestee. Further, that if in fact illegal votes were cast and counted for contestee as alleged, that nevertheless a large number of illegal votes were cast and counted for contestant in numbers more than sufficient to offset those complained of by contestant. Then follow general allegations in which a general investigation and recount is courted and prayed for, after which comes the prayer for judgment.
"This in substance is the original answer of contestee. No illegal voter is named as having voted for Bailey, nor is any ground stated for the charge of illegality, nor is any voting box named at which any illegal voter for Bailey is charged to have cast his vote. District court was in session on the day contestee's answer was filed but adjourned by operation of law on the following day.
"On December 12th, contestant filed special exceptions to the answer on the ground that in so far as it sought to set out illegal votes or other matter in offset to that averred by contestant the allegations were too vague and general to authorize the admission of proof, were mere fishing allegations, and the answer on its face a sham. That contestant had the right to more specific averments in order to be able to meet them. Upon these demurrers contestant sought a ruling by the court, but for lack of time they were passed to the following term.
"On April 8, 1903, in vacation, contestee filed an amended answer in which the allegations in the original answer were reiterated, but in which persons alleged to have voted illegally for Bailey were named and the facts rendering them disqualified to vote were specifically set out, and setting out other matters which, in view of the evidence adduced at the trial, need not be here mentioned.
"On April 25th, contestant filed a motion to strike out the answer of April 8th, on the ground that it set out new matter not embodied in nor germane to the matters alleged in the original answer, and that the amendment came too late, and lest the court should overrule his motion and exceptions contestant filed further pleadings setting up new matter in offset to contestee's amended answer.
"On April 28th, contestee filed what he termed a supplemental reply in which much new matter was set up and which contestant sought by motion and exception to strike out on the ground that it came too late, being filed after all demurrers had been overruled. That contestant is unable to meet these new averments, that they are a surprise to him, wherefore they should be stricken out.
"The court having overruled all the demurrers and motions of contestant, contestee, on April 30th, the eve of the trial, filed a second amended answer, upon which and the pleadings of contestant the cause was tried. This second amended answer contained new allegations in offset, but for which, as the case was developed on the trial, judgment must have been in contestants favor. In none of contestee's pleading *Page 430 is any reason given why the new matter was not sooner discovered and alleged, nor is any excuse given why all the substantial defenses were not embodied in the first answer.
"To the second amended answer contestant interposed a motion to strike out on the ground that it contained new matter and presented new fact issues which he was not prepared to meet without such delay as would be destructive of his rights and consume the substance of the litigation.
"Upon the trial contestant gained nothing upon any pleading of his outside his first and contestee won on new issues made in his last. Contestant established enough of his original allegations to have entitled him to a judgment but for offsets established by contestee under allegations of entirely new matter in his last pleading. It is proper to state in this connection that contestant, aside from his statement in his motions that he was surprised by the new pleadings and was not prepared to meet them, has not made such surprise or inability to appear in any other way, nor does the evidence adduced upon the trial enable us to say whether he was prepared upon the issues or not. In his motion for new trial he did not claim to have discovered any new evidence bearing upon the new issues complained of.
"The court overruled this motion and thereupon the contestant under protest filed an amended supplemental statement. These with the trial amendment of contestant withdrawing certain allegations on his original contest constituted the pleadings. They are very voluminous, covering about 110 pages of the record. It is not only impracticable, but we deem it unnecessary to set them out at length in this certificate. We believe we have fully stated the substance of them in so far as they bear upon the questions propounded. If our statement of the pleadings is found to be in any respect deficient for the purposes of this certificate we beg to refer the court to the record.
"In view of certain expressions in Calverley v. Shank, 67 S.W. Rep., 436, and Roach v. Mallot, 56 S.W. Rep., 703, we propound the following questions:
"Question No. 1. Should contestant's motion to strike out contestee's pleadings (or any of them) filed subsequent to the original answer have been sustained in whole or in part?
"Question No. 2. Did the court err in rendering judgment for contestee on proof of new matter alleged in his last pleading, the contestant having established none of the allegations made in offset to contestee's amendments?
"In response to a rule for cost on the part of appellee, contestant filed an affidavit under the statute applicable to such matters in civil cases setting up his inability to comply with the rule. Contestee made the point that this form of action could not be maintained on a `pauper's oath' and moved the court to dismiss on that ground. The court refused the motion.
"Question No. 3. Should the motion have been sustained ? *Page 431
"Contestant is the appellant and has executed a good and sufficient appeal bond.
"Question No 4. If the court erred in the matter involved in the third question, does the presence of the appeal bond covering all cost in the case render the error harmless?"
1. The first question is largely controlled by article 1803, Revised Statutes, as follows:
"In trials of all contests of election the evidence shall be confined to the issues made by the statement and reply thereto, which statement and reply may be amended as in civil cases; and as to the admission and exclusion of evidence, the trial shall be conducted under the rules governing proceedings in civil cases."
The contentions of appellant are, first, that, under the right to amend here given, new matter, that is, new bases or grounds of defense, can not be set up in an amendment of the original reply of the contestee; second, that, if such new matter may be set up, it can be allowed only upon a showing that it is newly discovered and of sufficient excuses for the failure to plead it sooner. These rules have been laid down in decisions cited by counsel for appellant, made in cases which were not governed by such a statute as that now in force in this State. This provision was first introduced in 1895 and is a radical departure from the rule prescribed in the older statutes. In plain terms it allows amendments "as in civil cases." We can not assume that the language was carelessly or ignorantly employed by the Legislature, and, even if we should do so, this would not alter the meaning of the provision, or make it any less the duty of the courts to follow it. At the time of its adoption it was well settled, both by decisions and rules of court, that the right to amend pleadings included the right to set up new matter, new grounds of recovery or of defense, subject to some regulations to be observed by the courts. When the Legislature has made these rules applicable without restriction, in contests of elections, the courts are bound to follow them, whether they are deemed wise regulations of such contests or not. This statutory provision, in connection with the rules established in this State concerning amendments in civil cases, distinguishes this case from all of those relied on by counsel for contestant. We must therefore hold that the fact that an amendment set up new matter was not, of itself, ground for striking it out. The same practice must also determine the second contention of contestants. The rules of practice governing in civil cases do not require that a defendant, setting up such matter, shall first show reasons why it was not sooner urged, but allow the making of such amendments subject to objections to which the facts existing when they are presented properly give rise. An amendment may be offered at such time and under such conditions as to justify the court in refusing leave to file it, or in striking it out, if it has been filed, on objection from the opposite party. Matossy v. Frosh,9 Tex. 612; Trammell v. Swan, 25 Tex. 500 [25 Tex. 500]. Circumstances may exist which would make it unjust either to subject *Page 432 the opposite party to the surprise resulting from an amendment or to force him to a continuance on account of such surprise, and therefore make it proper for the trial court to disallow the amendment. In determining such questions due regard should be paid to the nature of the proceeding and the importance of a speedy trial, but, at last, the rules governing the amendment of pleadings in civil cases are to be applied. What we have said disposes of the questions of law arising upon the facts stated and the first question asked in the certificate. Whether or not the facts of this case made it the duty of the trial court to strike out any of the pleadings of the contestee is for the Court of Civil Appeals to determine from all of the circumstances revealed by the record, which this court is not called upon to examine for such a purpose.
The answer to the second question is necessarily involved in that to the first. Amended pleadings properly before the court constitute the basis for the introduction of evidence and the rendition of judgment.
The third question is answered in the negative. The statute regulating such contests does not in terms require the contestant to give a cost bond, but provides that "bond for cost may be required as in civil cases." Bonds for costs can not be required in civil suits of parties who make the prescribed affidavit.