Lloyd v. Sullivan

9 Mont. 577
CourtMontana Supreme Court
DecidedApril 15, 1890
StatusPublished
Cited by9 cases

This text of 9 Mont. 577 (Lloyd v. Sullivan) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lloyd v. Sullivan, 9 Mont. 577 (Mo. 1890).

Opinion

Blake, C. J.

This is an election contest between Lloyd, the appellant, and Sullivan, the respondent, who were candidates for the office of sheriff of the county of Silver Bow at the election held in 1889. The certificates of the nomination of Lloyd by the Republican, and Sullivan by the Democratic conventions were properly filled. The official abstract of the vote cast at the election, according to the canvass which was made October 14, 1889, gave Lloyd, 3,490, and Sullivan, 3,363 votes. There was no other canvass of the vote for these parties, but the county clerk issued the certificate of election to Sullivan.

The statute which governs the procedure and trial of the issues arising in this proceeding provides as follows: “All contests of county .... officers shall be tried in the proper county, and when an elector shall wish to contest such election he shall file with the clerk of the board of county commissioners, within ten days after such person shall have been declared elected, a statement in writing, specifying the grounds of contest, verified by affidavit, and such clerk shall issue to the contestant a notice to appear at time and place specified in the notice, before the District Court . . . (Comp. Stats, fifth div. § 1043.) Then follows this section: “Sec. 1044. The district judge, at the time specified in the notice (and it shall appear by the sheriff's return that notice has been duly served on the contestor), shall proceed to try such contest. Each party shall be entitled to subpoenas, and subpoenas duces tecum, as in ordinary eases in law, [585]*585and the District Court shall hear and determine in such manner as shall cany into effect the expressed will of a majority of the legal voters, as indicated by their votes for such office, not regarding technicalities or error in spelling the name of any candidate for such office;'and the clerk of said court shall issue a certificate to the person declared to be elected by said court, which shall be presumptive evidence of the right of said person to hold such office, and he shall be entitled to enter upon and hold said office until such decision shall be reversed on appeal/"’ In pursuance of these statutory requirements, the proper notices were filed, issued, and served by Lloyd, an answer was made by Sullivan to the statement of contest, and a replication was filed by Lloyd. It will be necessary to observe carefully some of the proceedings-upon the trial, and to prevent any misunderstanding thereon they will be recited in the language of the court below. The following judgment was entered February 24, 1890: “This cause came on regularly for trial on the eleventh day of February, 1890, before the court, sitting without a jury.Whereupon -witnesses wore examined and other evidence introduced on the part of the contestant and respondent respectively, and the evidence being closed, and the argument of counsel heard, the cause was submitted to the court for consideration and decision; and after due deliberation thereon, the court delivers its findings and decision in writing, which is filed, and orders that judgment be rendered in accordance therewith. Wherefore by reason of the law and the findings aforesaid, it is by the court ordered, declared, and adjudged that, at the general election held in the county of Silver Bow on the first Tuesday, being the first day of October, 1889, the respondent, Eugene D. Sullivan, received a majority of all the legal votes cast in said county at said election for the office of sheriff of said county of Silver Bow, and was and is duly elected to said office.”

The findings of the facts, which are fifteen in number, contain this statement: “The evidence in the above-entitled cause having been fully heard, together with the argument of counsel for the respective parties, and the same having been submitted to the court for decision, the court, in response to the written request of the parties, makes the following findings of fact from the evidence, and its conclusions of law thereon.”

[586]*586Thereupon Lloyd filed a notice of his intention “ to move the court to vacate and set aside the decision of the court rendered in the above cause, and to grant a new trial of said cause.” The statement, which was “approved and allowed” March 31, 1890, by the judge of the court below, contains the testimony which was introduced upon the trial, the exceptions which were saved by the appellant, and the specifications of the “ particulars in which the evidence is insufficient to sustain the findings and decision of the court.” Upon April 3, 1890, “the motion for new trial herein, heretofore taken under advisement, is by the court overruled, and to which ruling of the court plaintiff, by counsel, duly excepts.” The notice of appeal states “that the contestant in the above-entitled action hereby appeals to the Supreme Court of the State of Montana, from the order of the District Court of the Second Judicial District of the State of Montana, overruling contestant’s motion for a new trial of said action, and refusing a new trial thereof, made and entered in said court on the third day of April, A. D. 1890.”

At the threshold of this inquiry the respondent contends that the motion for a new trial does not lie, and that the court has no jurisdiction of the appeal.

The statutes and constitutions of the States vary materially, and it must be admitted that the decisions are not harmonious upon this question. The law of this State, which has been cited, evidently contemplates that the judgment of the District Court shall not- be final, for its terms expressly limit the right of “ the person declared to be elected” to “enter upon and hold said office until such decision shall be reversed on appeal.” The construction sought to be enforced by the respondent renders this provision nugatory, and deprives the aggrieved party of a substantial right. In Payne v. Davis, 2 Mont. 382, the value of the property involved in the controversy was fifty dollars; the act of the legislative assembly declared that this court shall have jurisdiction in civil cases “where the amount in dispute exceeds one hundred dollars.” Upon the motion of the respondent to dismiss the appeal, we held that “ statutes must be so construed as to maintain the right of appeal, if the established rules of interpretation are not violated;” and adjudged that the restriction was inconsistent with the organic act of the Territory, [587]*587which allowed appeals “in all cases from the final decisions” of the District Court, and therefore void. The case was then heard and determined upon its merits. Subsequently the statute concerning this subject was amended, and now provides as follows: “The Supreme Court shall have appellate jurisdiction in all cases tried in the District Courts.” (Code Civ. Proc. § 697.) Let us consider some sections of the Code of Civil Procedure. “A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this act.” (§ 418.) “An appeal may be taken to the Supreme Court from the District Courts in the following cases: First. Prom a final judgment, or any part thereof, entered in an action or special proceeding commenced in those courts, or brought into those courts from other courts. Second. Prom an order granting or refusing a new trial.” (§ 444.)

The Constitution declares that the “appellate jurisdiction of the Supreme Court shall extend to all cases at law and in equity” (art. viii. § 3), and it is claimed by the respondent that an election contest is not included by the word “cases,” which has a technical meaning.

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Bluebook (online)
9 Mont. 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lloyd-v-sullivan-mont-1890.