Chamberlain v. Woodin

• Citation: 2 Idaho 642,23 P. 177
• Parties: CHAMBERLAIN v. WOODIN
• Decision Date: 13 February 1890
• Court: United States State Supreme Court of Idaho

23 P. 177

2 Idaho 642

CHAMBERLAIN v. WOODIN

Supreme Court of Idaho

February 13, 1890

NONSUIT-TESTIMONY-ELECTIONS.-When a motion for nonsuit is made by the defendant at the close of plaintiff's testimony, because of its insufficiency and overruled, if defendant then introduces his testimony, he waives his right to have the error in overruling the motion reviewed.

TESTIMONY-INSUFFICIENCY OF.-A judgment will not be reversed when there is a substantial conflict in the testimony, or unless it seems the result of passion or prejudice.

ELECTIONS.-When so irregular and fraudulent that the true result cannot be ascertained from the returns of the poll, they should be rejected and the true result shown by other evidence.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed.

Hawley & Reeves and W. H. Savidge, for Appellant.

The issues being all material, it was the duty of the court to find thereon, and the failure to fully find upon them, and each of them, is sufficient ground for reversal of the judgment herein. (Porter v. Muller, 65 Cal. 512, 4 P. 531; Campbell v. Buckman, 49 Cal. 362; Dowd v. Clarke, 51 Cal. 262; Speegle v. Leese, 51 Cal. 415; People v. Forbes, 51 Cal. 628; Kennedy v. Berry, 52 Cal. 87.) To avoid the election, the misconduct of election judges must be such as to procure a person to be declared elected when he has not received the highest number of votes. (Rev. Stats., sec. 5027; Paine on Elections, 187-196; McCrary on Elections, 105-510, 600.) The presumption is in favor of the validity of the election. (Commonwealth v. Lee, Bright. Elect. Cas. 98; People v. Clark, 1 Cal. 408.) It is only where the provisions of the election law have been entirely disregarded by the officers, and their conduct has been such as to render their returns utterly unworthy of credit, that the entire poll may be rejected; and even in such case the votes actually polled must be computed. (Littlefield v. Green Bright. Elect. Cas. 493; Piatt v. People, 29 Ill. 72; People v. Cook, 8 N.Y. 68, 59 Am. Dec. 451; Mann v. Cassidy, 1 Brewst. 60; Chadwick v Melvin, Bright. Elect. Cas. 256.) Thoughtless interference by outside persons with the election officers is not ground for setting aside the election. (Boileau's Case, Bright. Elect. Cas. 268; Skerrett's Case, Bright Elect. Cas. 320; Sprague v. Norway, 31 Cal. 173; Dale v. Irwin, 78 Ill. 170.) Nor do mere irregularities or omissions to observe directory provisions of law. (Gilleland v. Schuyler, 9 Kan. 569; Sprague v. Norway, 31 Cal. 173; Sudbury v. Stearns, 21 Pick. 148; Weeks v. Ellis, 2 Barb. 320.)

Smith & Smith and John T. Morgan, for Respondent.

Immaterial issues, or those rendered immaterial by the facts found, need not be found. (Estate of Wooten, 56 Cal. 326; Porter v. Woodward, 57 Cal. 535; Whiting v. Townsend, 57 Cal. 519; McCourtney v. Fortune, 57 Cal. 617; Knowles v. Seale, 64 Cal. 377, 1 P. 159; Robarts v. Haley, 65 Cal. 397, 4 P. 385.) There must be a total deficiency in evidence, or such great preponderance as to show passion or prejudice, to warrant the setting aside of a verdict or finding. (Glenn v. Arnold, 56 Cal. 631; People v. Manning, 48 Cal. 335; Bensley v. Whipple, 57 Cal. 267.) If there is any evidence to support the finding, it will not be disturbed. (Lick v. Madden, 36 Cal. 213, 95 Am. Dec. 175; Hill v. Smith, 32 Cal. 167; Wilson v. Fitch, 41 Cal. 363; Cox v. Stage Co., 1 Idaho, 376; Trenor v. Railway Co., 50 Cal. 222.)

BEATTY, C. J. Berry and Sweet, JJ., concur.

OPINION

BEATTY, C. J.

At the general election, held in November, 1888, the parties to this action were opposing candidates for the office of sheriff of Bingham county, to which the appellant was declared elected. The respondent in pursuance of our statute for "Contesting Certain Elections," beginning with section 5026, commenced this action of contest, alleging as the grounds thereof: 1. Malconduct of the board of judges of election in Rexburg precinct, in said county; and 2. That illegal votes were cast in said precinct, and counted for appellant. At the trial of the cause, when respondent closed, appellant interposed his motion for nonsuit, which being overruled, he proceeded with the introduction of his testimony. By the judgment of the court the respondent was declared elected to said office, and the appellant here asks its reversal.

All the alleged errors complained of by appellant may be considered under the following subdivisions: 1. That the court erred in overruling his motion for nonsuit because respondent's testimony was insufficient to warrant a judgment in his favor; 2. That the findings do not support the judgment; 3. That the court failed to find on all the issues raised; and 4. That the judgment is not warranted by the facts and the law.

The consideration of these questions has required an examination of perhaps the most voluminous record that has ever been submitted to the review of this court, and it has been found a most onerous duty to comply with the closing suggestion of appellant's brief, in which he "commends it to our careful attention and thorough consideration." We earnestly urge a closer observance of the provisions of our statutes which forbid the incumbering of the record with "redundant and useless matter." Even when an appeal is taken, upon the ground of the insufficiency of the evidence, it is entirely unnecessary to incorporate all that has been said by witnesses, including questions and answers. The statute will protect the appellant who inserts in his record, in narrative form, only such evidence as is pertinent to the material issues, and procures thereto the proper certificate of the judge, showing that all such evidence is included.

Motion for nonsuit, on account of insufficiency of evidence, is waived by the subsequent introduction of testimony by the mover. Did the court err in overruling the motion for nonsuit? The motion, as above stated, was based upon the alleged insufficiency of the evidence. In the determination of this question, examination of the testimony is unnecessary, for any error the court may have made in this matter was entirely waived by the subsequent introduction of appellant's testimony. It is so settled by the highest authority, to which, for the justification of our ruling, we refer. (Bradley v. Poole, 98 Mass. 169, 93 Am. Dec. 144; Railway Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 266; and Insurance Co. v. Crandal, 120 U.S. 527, 7 S.Ct. 685, 30 L.Ed. 740.)

Do the findings support the judgment? The appellant claims the findings do not justify and support the judgment. It is admitted they would be more satisfactory if more specific, but, being "proceedings" under our statute, they must likewise be liberally construed. They are, in effect, that "the judges of said election in said precinct permitted legal voters to be arrested, intimidated, and prevented from voting"; "that they permitted legal voters to be arrested for challenging illegal voters"; "that they permitted a large number of persons, whom they suspected were illegal voters, to vote without challenge"; "that they themselves were terrorized by threats of arrest, if they challenged illegal votes"; "that one of the clerks was violently arrested and taken away because he had challenged illegal votes"; "that they conducted the election almost the entire day without any election register"; "that they and others were intimidated and prevented from challenging any person offering to vote by armed men who were sent there from without the precinct by the United States marshal." Our statute does not define what constitutes malconduct of the officers of election, but it must be held that any proceedings which result in unfair elections, that deprive the qualified elector of the opportunity of peaceably casting his ballot and having it counted as cast, or that permit illegal votes to be cast and counted, are within the statutory provisions. Section 570 of our statutes directs that the judges of election must challenge any person offering to vote whom they know or suspect not to be qualified; also it is required the "election register" must be at the polls. That the judges themselves were intimidated does not justify such conduct on their part as results in an unfair election. The design of the law is that the election shall be so conducted as to result in the free expression of the legal voters' will. If this fails, from any conduct on the part of the judges, regardless of the cause, the law is not fulfilled. It cannot be doubted, from these findings, that the election was irregular in the highest degree. The findings further show that those irregularities procured the appellant to be declared elected, when he had not received the highest number of legal votes; that illegal votes were cast for him; that, if the illegal votes cast and counted for him were deducted from his total vote, it would leave him with fewer legal votes than respondent had; and upon these findings the court rendered judgment that defendant was elected to the office, and appellant was not, which we think they fully sustain.

Were all necessary findings made? The appellant's next assignment of error is that the court did not find upon all the issues. This question seems for the first time to be suggested in his argument, as the record does not disclose that he asked any additional findings, or excepted to those found as insufficient, or made any objection whatever. It is noted that his objection now is not to a failure to find on all material, but on all, issues raised in the case. By numerous decisions it has been held that findings must be made upon all material issues, but even this ruling is modified in various ways; as that, "when the court fails to find on a...