Williams v. Hickey

126 So. 558, 169 La. 1076, 1930 La. LEXIS 1639

• Court: Supreme Court of Louisiana
• Decided: February 26, 1930
• Docket: No. 30521.
• Status: Published

Opinion

PER CURIAM.

This is a contest over the Democratic nomination for recorder of mortgages for the parish of Orleans.

Plaintiff claims that by reason of frauds and irregularities some 70-odd polling boxes (out of some 240-odd) should be completely thrown out and discarded and the Orleans Parish Democratic Committee ordered to exclude same from their compilation; or in the alternative that said boxes be recounted, and on such recount that plaintiff be recognized and declared the party nominee for said office.

The defendant moved the court to compel plaintiff to elect whether he would stand on his prayer to have said boxes thrown out and discarded, or would stand on his prayer to have said boxes recounted; claiming that said demands were inconsistent.

On this motion.the court ruled as follows: “There are certain charges in this petition to which an exception of no cause of action would lie, and evidence would not be admissible. I am inclined to maintain the motion that you must elect.”

We agree with the district judge that the allegations of the petition as to fraud and irregularities show no cause of action, because they are so vague, general, and indefinite that no evidence should be received in support thereof.

Hence the only cause of action which plaintiff had left was for a recount of the ballots. And the trial judge therefore properly ruled that the plaintiff should elect whether he would or would not proceed on that cause of action.

Thereupon plaintiff elected to proceed to a recount of the vote. And that recount having been had, the new count showed that defendant was still entitled to a clear majority over both of his opponents, and was therefore entitled to the nomination. The trial judge so held and dismissed plaintiff’s suit.

The judgment appealed from is therefore affirmed.