Banks v. Sergent

• Decision Date: 02 December 1898
• Parties: BANKS v. SERGENT. [1]
• Court: Kentucky Court of Appeals

48 S.W. 149

104 Ky. 843

BANKS v. SERGENT. ^[1]

Court of Appeals of Kentucky.

December 2, 1898

Appeal from circuit court, Letcher county.

"To be officially reported."

Contest by W. H. Banks of the election of Wilson Sergent to the office of sheriff of Letcher county. Judgment of contesting board and of the circuit court for contestee, and the contestant appeals. Affirmed.

W. S Pryor and J. J. C. Bach, for appellant.

Wm. H Holt and S. B. Bishman, for appellee.

WHITE J.

The appellant and appellee were opposing candidates for the office of sheriff of Letcher county at the regular election in November, 1897. On the face of the returns, the appellee received 505 votes and appellant 469 votes. The comparing board gave the certificate of election to the appellee. Thereupon, and within 10 days, the appellant gave notice of contest. The appellee gave a counter notice of contest, and upon this notice and counter notice proof was taken, and the contest heard and determined by the county board, composed of the county judge and two justices. The judgment of this board was for contestee, Sergent. The case was appealed to the circuit court, and the same judgment was rendered, and from that judgment this appeal is taken.

The notice of contest given by appellant seeks to have election returns from precinct No. 1 of Letcher county disregarded because of the fact, among others, that the polls were not closed at 4 p. m., the hour fixed by law, but that more than 100 votes were permitted to be cast at that precinct after 4 o'clock p. m. The returns of precinct No. 6 are sought to be disregarded for the same reason,--that from 25 to 50 votes were permitted to be cast at that precinct too late, and because 15 illegal voters had been permitted to vote for appellee, giving names. The charge is that each of these 15 persons had been disfranchised by the judgment of a circuit court. It is also claimed by the notice that there is an error of 10 votes in precinct No. 2, in that appellant by the returns is certified as having received 57 votes, when as a fact he received 67 votes. This notice also complains of the action of the election officers in precinct No. 5 in refusing to count certain ballots returned with the certificate, and appellant seeks to have these counted. There are other grounds of objection to precinct No. 1, --of fraud on the part of the election officers, in that they changed and falsified the result at that precinct as actually cast, by deducting from appellant's number 12 votes; the certificate being that he received 75 votes, when it is alleged that he received 87 votes. The appellee gave a counter notice, in which it is alleged that the 15 illegal voters who were named by appellant as voting at precinct No 6 voted for appellant, and should be purged. The counter notice admits the alleged error in precinct No. 2 of 10 votes. Appellee charges that in precinct No. 5 there was no attempt to hold the election under the secret ballot law, but that the ballots were marked by the clerk on the table, in plain view of the other election officers, without any disability of the voter being shown, and in the presence of the voters there permitted to be assembled. On these charges and counter charges, as well as that in each of these precincts the officers of election used whisky on the day of the election, and separated, and votes were received by some of the officers in the absence of the other officers, much proof was taken by deposition, and the original ballots and returns are brought here. From the proof here it appears that 361 votes were polled at precinct No. 1. Of this number, appellant, by the returns, received 75, appellee received 121, and another candidate 67. In precinct No. 5, appellant received, by the returns, 131 votes, appellee 41 votes, and the other candidate 13; there being 230 votes cast at that precinct. In No. 6, by the returns, appellant received 53 votes and appellee 63, the other candidate receiving 9 votes; there being 153 votes cast at that precinct. The vote in the other three precincts is not questioned, except the error in 10 votes claimed by appellant in No. 2, which in the counter notice given by appellee is practically conceded.

It is contended by appellee that appellant must fail in this proceeding for the reason that the original notice of contest, which was given on the 6th day of November, was abandoned, and this proceeding is had under a subsequent notice, given on the 12th; appellee contending that a party contestant is bound by the first notice given, and that it could not be changed or amended, or additional grounds set up, in a subsequent notice. We do not assent to this proposition. We are of opinion that, within the time allowed by law to give notice of contest, a person may give notices additional and amendatory, or abandon the first and give others. He may give as many notices of grounds of contest as he desires, provided he does so within the limit of time allowed, and on the meeting of the board of contest he may file any one or all of the notices given, and rely on any or all grounds set out in either of the notices given.

After the board of contest had assembled and were sworn, the appellant offered to file additional grounds of contest, and the board refused to permit same to be filed, or to consider them, because they were not in the notices given within the 10 days allowed by law. This action is assigned by appellant as error, as the amendment was again offered in the circuit court with a like result, the court refusing to permit same to be filed. This question has been passed on by this court at this term in the contested election case of Anderson v. Likens, 47 S.W. 867. In that case it was expressly held that, after the limit fixed by law for giving notice of contest, an amendment...