Atkinson v. Roosevelt County

• Decision Date: 10 July 1924
• Docket Number: 5481.
• Citation: 227 P. 811,71 Mont. 165
• Parties: ATKINSON v. ROOSEVELT COUNTY ET AL. (MOORE, INTERVENER).
• Court: Montana Supreme Court

227 P. 811

71 Mont. 165

ATKINSON v. ROOSEVELT COUNTY ET AL. (MOORE, INTERVENER).

No. 5481.

Supreme Court of Montana

July 10, 1924

Appeal from District Court, Roosevelt County; George A. Horkan Judge.

Suit by J. L. Atkinson against Roosevelt County and others, wherein R. J. Moore intervened. From decree for defendants, and order dissolving injunction pendente lite, plaintiff appeals. Judgment and order affirmed.

C. A Spaulding, of Helena, and H. F. McConnell, of Poplar, for appellant.

Marron & Foor and H. A. Schoening, all of Wolf Point, Norris, Hurd Rhoades & Hallett, of Glasgow, and H. C. Hall, of Great Falls, for respondents.

GALEN J.

This is an action in injunction to restrain the defendants from removing the county seat or their offices from the town of Poplar to that of Wolf Point. The individual defendants named comprise the board of county commissioners and other officers of Roosevelt county. The case involves the location of a permanent county seat growing out of an election held November 7, 1922, whereat the towns of Poplar and Wolf Point were contenders for the county seat of Roosevelt county. Poplar had been the temporary county seat from November 2, 1920. On the face of the election returns Wolf Point won by a majority of 192 votes and was duly declared to have been selected as the site of the permanent county seat. Misconduct on the part of certain of the judges of election, illegal voting, corrupt practices, and fraud in several voting precincts are charged.

Upon the filing of plaintiff's complaint Judge C. E. Comer issued a temporary restraining order enjoining the removal or attempted removal of the county seat from Poplar to Wolf Point. Cause, if any existing, was required to be shown, by the defendants in the action before Judge John J. Greene why the injunction should not be continued until final judgment on the merits. A hearing was had pursuant to this order before Judge Greene. Oral testimony was introduced, and at the conclusion of the hearing the court refused to vacate the temporary restraining order and ordered the issuance of an injunction pendente lite. Appeal was prosecuted to this court by one of the defendants, George Leeson. Upon such appeal we hold that the issuance of a temporary injunction is largely a matter of discretion on the part of the district judge and in the absence of a showing of abuse thereof refused to interfere therewith. Atkinson v. Roosevelt County, 66 Mont. 411, 214 P. 74.

Answer was made and filed by certain of the defendants, and R. J. Moore, a resident taxpayer and elector of the town of Wolf Point, asked and was granted leave to intervene in the action. Thereupon he filed a complaint in intervention wherein he traversed the material allegations of plaintiff's complaint, alleged affirmative matter, and prayed that the injunction be dissolved and Wolf Point declared to be the permanent county seat. Issue having been joined by reply made to the answer of the defendants and the complaint in intervention, the matter came on regularly for trial on the merits before Hon. George A. Horkan, Judge of the Fifteenth judicial district, without a jury. Subsequently, on February 11, 1924, Judge Horkan filed with the clerk of the court his findings of fact and conclusions of law in the cause, which are in favor of the defendants, whereby the injunction was ordered dissolved. On February 13, 1924, a judgment was regularly signed by Judge Horkan vacating and setting aside the injunction pendente lite and decreeing that the county seat of Roosevelt county be removed from the town of Poplar to that of Wolf Point. The judgment was regularly filed and entered February 15, 1924. On February 13, 1924, the plaintiff filed his notice of appeal to this court from the order dissolving the injunction and on February 19, 1924, perfected an appeal from the judgment. The appeal from the order was accomplished on February 22, 1924. By order of this court these appeals were consolidated and permission granted to file a single record. The record comprises ten large volumes, and the errors assigned by plaintiff's learned counsel number 155.

By plaintiff's assignments of error on this appeal the findings of fact and conclusions of law made by the trial court are vigorously attacked upon the following grounds, to wit:

(1) The recognition of votes of electors in certain of the precincts wherein such electors did not reside; (2) violations of the Corrupt Practice Act in certain of the precincts sufficient to nullify the election held in such precincts; (3) the holding of the election in precinct No. 31, at Cogswell's store, a trading post, contrary to the provisions of section 552, Rev. Codes 1921; (4) giving recognition to the votes cast at Bainville, precinct No. 4, whereat there was, for an appreciable length of time, but a minority of the judges of the election present; (5) illegal recognition given to the election held at Wolf Point in precincts Nos. 23 and 24, notwithstanding there was proof of willful misconduct on the part of the judges of election in knowingly receiving illegal votes; (6) unlawfully sustaining the election held at Bainville in precincts 2, 3, and 4, wherein illegal votes were accepted in favor of Wolf Point and legal votes in favor of Poplar rejected; (7) error in the admission and rejection of evidence; (8) error in refusing to rule on the admission of evidence, the court's rulings having been reserved at the time the proof was admitted; (9) that the court's findings are contrary to the evidence; (10) that the court was in error in holding the plaintiff to be estopped to challenge the legality of the election held in precinct No. 31 at Cogswell's store, by failure to challenge the same prior to the canvassing of the returns.

At the outset we are confronted with motions made by the defendants and the intervener to strike the record on appeal from the files and to dismiss both appeals. Admittedly there is no bill of exceptions contained in the record. The judgment roll is properly before us, and question arises as to the propriety of considering the testimony as presented. A transcript of the stenographer's notes of the evidence introduced at the trial and of all of the original exhibits have been filed in this court. Appellant's counsel justifies the record by reference to section 9745, Rev. Codes 1921, which reads in part as follows:

"On an appeal from an order, except an order granting a new trial, the appellant must furnish the court with a copy of the notice of appeal of [from] the judgment or order appealed from, and of all papers and evidence used on the hearing in the court below. Such papers, files, and evidence, when certified by the clerk of the court to be correct and accompanied by a certificate of the judge that such records have been used at the hearing in the district court, may be considered on appeal without further identification."

The court stenographer has certified that the transcript contains a true, correct, and complete record of the testimony and proceedings in the case, as did also the judge and the clerk of the court. Eight volumes thereof are devoted to testimony introduced at the trial running from page 1 to 3098, inclusive. Volume 9 is certified to contain true and correct copies of all of the exhibits introduced at the trial of the cause. Volume 10 is certified by the presiding judge and the clerk of the court to constitute the judgment roll.

Are we in position, in view of the character of the record before us, to consider and pass upon the several assignments of error grouped as above indicated? We are satisfied that as respects the appeal from the judgment we are not at liberty so to do, and, as to the appeal from the order, it is necessary for us to determine from an examination of the record whether there was sufficient testimony before the court to warrant its order vacating the injunction. The transcript may be used for the latter purpose since the statute permits it. Section 9745. It may be that the record is unfair to the defendants, since the testimony was not settled in a bill of exceptions, but, as the statute allows an appeal from such an order, on a record of the character here presented, we are constrained to give recognition to it. But in connection with the appeal from the judgment it serves no useful or other purpose. By section 9390, Rev. Codes 1921, the party appealing from a final judgment, if he desires to have the proceedings at the trial reviewed, must have the same incorporated in a bill of exceptions. And such has been the oft-repeated decisions of this court, most recently in the cases of Montana Mausoleum Co. v. Fava, 66 Mont. 128, 212 P. 515; In re Extension of Bitter Root Irr. District, 67 Mont. 436, 218 P. 945; Midland National Bank v. Hegna, 68 Mont. 544, 219 P. 628; Weibush v. Jefferson Canal Co., 68 Mont. 586, 220 P. 99. And where requisite papers are not furnished on the appeal it may be dismissed. Section 9747.

The vote as canvassed and declared by the board of county canvassers is 2,003 in favor of Wolf Point and 1,811 in favor of Poplar, a majority in favor of Wolf Point of 192. The court found that there were 1,987 legal votes cast in favor of Wolf Point and 1,790 legal votes for Poplar, a majority of 197 in favor of Wolf Point.

In the district court the plaintiff assumed the burden of proving the invalidity of the election on the grounds upon which his complaint is predicated in the precincts in which the election is attacked, by a preponderance of the evidence; and on appeal he assumed the burden of showing that the evidence clearly preponderates against the findings of the trial court. We enter upon a consideration of this appeal, indulging every presumption in favor of the findings...