Judgment reversed with instructions.
Ralph Estrada, of Phoenix, for appellant.
Gregorio Garcia, in personam.
Fred W. Fickett, Robert S. Tullar, of Tucson, for appellee.
Stanford, Justice. La Prade, C. J., and Udall, Phelps, and De Concini, JJ., concur.
[70 Ariz. 193] The parties to this action are members of the Alianza Hispano-Americana, a fraternal benefit society organized under the laws of the State of Arizona.
Beginning the 16th day of August, 1948, a quadrennial convention was held by said organization in Tucson, Arizona. On the 20th day of August there was held an election to choose a president and nine directors of the organization. There were present at the convention 19 delegates sent there by their subordinate lodges and 9 directors, making a total of 28 entitled to vote in the election. Two candidates were nominated for the position of supreme president, the appellant herein and the appellee, the incumbent president. Balloting was taken by writing the name of the person voted for upon a slip of paper and placing it in the ballot box. At the conclusion of the voting and the counting of the ballots the election board announced that the appellant had received 12 votes and the appellee had received 16 [70 Ariz. 194] votes. Upon the announcement of the results of the ballots appellant claims to have made a motion for a recount of the ballots. In any event a commotion and heated discussion arose at which time Francisco Cardenas, an election judge, immediately took the ballots from the election table and put them in his pocket. Peace officers were called to the convention hall and a recess was declared. Immediately thereafter 12 of the delegates and 7 of the members of the board of directors left the convention hall and met in another room of the convention building, secured a notary public and an affidavit was prepared and signed by all of them to the effect that each had voted for appellant Gregorio Garcia for president of the organization. The affidavit also stated that the one holding the ballots, Francisco Cardenas, failed and refused to produce the same for recount.
On the 24th day of August, 1947, appellant submitted to the county attorney of Maricopa County a verified complaint supported by the aforesaid affidavit with a written request that the county attorney institute an action in quo warranto against C. B. Sedillo (appellee) claiming that the appellee had unlawfully usurped the office of president of the organization herein mentioned and requesting the county attorney to institute an action to oust appellee from said office, but the county attorney refused to bring the action on the ground that the office was a private office and not a public office and that the petitioner had an adequate remedy to him under section 28-305, A.C.A.1939.
This appellant thereafter, but on the same day, applied to the superior court of Maricopa County to grant appellant leave to bring and maintain his action of quo warranto which leave was granted on said date by the Honorable Dudley W. Windes, one of the presiding judges.
On September 20, 1948, motion was made by the Honorable Fred W. Fickett, attorney for appellee, for a change of venue transferring the case to the county of Pima, which motion was granted. The case was tried before that court sitting without a jury, and from a judgment in favor of appellee this appeal was taken.
Since there are 79 findings of fact, coupled with 24 conclusions of law, and 27 assignments of error, in the interest of brevity we must strip the case of many matters that we think are immaterial, yet we will dispose of the vital issue in determining the case. The primary question for us to determine is: Who received a majority of the 28 votes cast for president of Alianza Hispano-Americana on August 20, 1948?
The record is replete with conflicts upon practically everything about which testimony was offered except the one vital question upon which the determination of this case rests to wit: Who received a majority of the 28 votes cast for president?
It is singular to observe that the entire record is wholly barren of any evidence [70 Ariz. 195] as to how any elector actually voted except ...