Allen v. Sturgill

• Decision Date: 23 September 1949
• Parties: ALLEN v. STURGILL, Sheriff, et al.
• Court: Kentucky Court of Appeals

223 S.W.2d 164

311 Ky. 17

ALLEN v. STURGILL, Sheriff, et al.

Court of Appeals of Kentucky

September 23, 1949

Rehearing Denied Oct. 21, 1949.

Primary election recount proceeding by Jarvis Allen against T. B Sturgill, Sheriff of Floyd County, and others.

The Circuit Court of Floyd County, Edward P. Hill, J., entered a judgment declaring that Duran Moore was entitled to the Democratic nomination for clerk of Floyd County Court and plaintiff appealed.

The Court of Appeals, Stanley, C., held that the Circuit Court properly refused to reject ballots cast in a particular precinct, though many ballots from the precinct were purportedly cast by nonresidents, and affirmed the judgment.

Joe Hobson, Prestonsburg, Edward L. Allen, Prestonsburg, for appellant.

J. C Cornett, Hindman, Cordell H. Martin, Hindman, Clark Pratt Hindman, for appellees.

STANLEY Commissioner.

In this primary election recount proceeding the question is whether the court should consider the ballots cast in a precinct where undisputed evidence disclosed a vicious stuffing of the box.

In the race for the Democratic nomination of clerk of the Floyd County Court the returns showed Duran Moore received 2,253 and Jarvis Allen 2,176 votes. Five others received fewer ranging from 1,621 to 864. Allen instituted this recount proceeding. After the ballots in eight precincts had been counted, without any substantial change, the plaintiff objected to the counting of the ballots purportedly cast in Kennedy precinct and introduced evidence to support his challenge of validity. The returns in that precinct were Moore, 152, and Allen, 51 votes. The stubs showed that the first 19 voters had cast their ballots alphabetically, in the exact order in which they were listed on the registration records; also that two of these persons were dead and others were nonresidents of the state. It was shown altogether that 17 nonresidents of the state and 13 nonresidents of the county or precinct had voted there. Upon this revelation the plaintiff, Allen, by amendment withdrew his request for a recount of the ballots in the other precincts of the county and rested his case upon his claim that Kennedy precinct should be thrown out. The result in that event would be that he received a majority over Moore. The circuit court ruled that this evidence of fraud and corruption could not be considered in a recount proceeding and accordingly counted all the ballots. ...