Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1897-05-01


Kansas, 32l. and it was there held err
ror to sustain Il motion to dismiss a
conteStOr'S whole case because of the
lnSufficiency of the notice. The sec
ond proposition is wholly unsupported
by authority in Kansas. A motion by
plaintiff to dismiss his case does not
! per Sc discontinue an action. A dis
IlllSSal IS In the nature of d judgment.
and requires an order of the court
boot and Shoe Co. VS.. Derse. 4ISt
Kansas. 1oO- Allen vs.. Dpdson. 39th
Id. 10 Oberlander ". Confrey, 3Sth
10: 49, Brown vs. Mining Co, b id.
/ o2S- As the court still. under the
authorities cited, retained jurisdic-
tlon of the case with power to enter
final Judgment, Notwithstanding the
| hIIng of the motion and stipulation,
1t follows that it retained the power
TO make other orders, and might in
its discretion allow the stipulation to
be withdrawn. 1t exercised that dis
cretlonary power and did SO, as al
ready stated. without objections or
exceptions by the contestee. Having
permitted The Withdrawal of the
stipulation after due consideration. it
then not only was not obliged to dis
miss the case because of the filing
thereof, but had already Invested
itself OF the right to do so.
The next ruling complained of is
the refusal of the court to set aside
the notice of contest. Four grounds
were set forth in the motion to quaSh
but counsel has argued but two in
this court, viz: 1St. That the notice
does not contain brief statement of
the causes of contest. I'd That it
reclteS other grounds than those con-
tanned in the cOnteStor's statement.
As to the first proposition the notice
informed the plaintiff in error that
proceedings had been begun to contest
election .'lnOn a of To-
gal votes and ballots cast at said cleo
tlOn," and for other causes therein
enumerated. Such a statement could
hardly have been misunderstood and
was as complete as is required by law
from an inferior court. In the case
of Steele VS.. Martin, 9th Kansas, 430,
it was held that notice stating the
grounds of contest to be that the
board of county canvaSSerS rejected
and refused to count the votes cast in
certain townships" was sufficient and
that the cOnteStee must look to the
cOnteStOr'S verified statement for a
more specific statement of his grounds
for contest. The notice in this case
was certainly as specific as the one
thus approved by the Supreme Court
of our State. AS to the second prop
osition it is true that the notice con-
tanned charges not stated in the con-
testers verified statement. but such
charges were mere surplusage, requir-
ing the interpOsitiOn of no defense by
cOnteStee, and in no wise operating
to destroy the effect of those properly
included.
The next ruling excepted to on the
trial was the refusal OF the court to
sustain demurrer to the contestor's
statement. Counsel for the plaintiff
in error failed in his oral argument
to direct the attention of this court
to any grounds for this demurrer be-
yOnd the suggestion that he intended
thereby to challenge the Jurisdiction
of the contest court. This court fails
to perceive the force of that SuggeS-
tion and counsel having failed to
point out other grounds for his excep-
tiOnS will be deemed to have waived
them. Wilson VS.. Fuller, 9th Kan
SaS. 176. School District VS.. Carter,
18th id. All. Davis VS.. Fillmore, 18th
id. 1913. Campbell VS.. Phillips, 2Sth
id. 754.)
After overruling the contestee's de-
murrer the court permitted the con-
testor to file an amended statement
of contest, containing idenuically
the same grounds as the original
statement, and in addition thereto
alleging that one j. j. Phares and one
John w. Phares each cast illegal
votes for the cOnteStec, and that the
election officers of the various voting
precincts in the district erred in
counting the ballots. The plaintiff
in error objected to the filing of the
amended statement and afterwards
moved to strike it from the files. The
motion was overruled and herein it is
urged that the court erred. Whether
an amendment setting up new
grounds of contest can properly be
permitted after the expiration of
twenty days from the date of the can
vass of the votes is a question about
which the court in deciding the case
of Baker VS.. Long, 18th Kansas, BAL,
expressed some doubts, and upon
which authorities from other juris-
dictionS differ. 1t is, however, one
which need not be decided in this
case. The original statement of con-
test alleged that WeStover, Sherry,
Artz ond Fordice illegally voted for
the contestee and theirs were the on
ly votes rejected by the trial court.
On all new issues raised by the amend
ed statement the decision was in
favor of MuSgrave. The case, there
fore, was decided in favor of Barclay on
only such groundt as were alleged i'm
the original statement and reiterat ted
in precisely the same language in the
amended one. consequently the addi-