Day v. Crutchfield

Decision Date07 December 1965
Docket NumberNo. 7697,7697
Citation400 S.W.2d 377
PartiesHoover DAY, Ralph H. Smith, Troy Simpkins and C. R. Cozart, Appellants, v. Lester CRUTCHFIELD, County Judge of Lamar County, Texas, and J. N. Thompson, County Attorney of Lamar County, Texas, Appellees. . Texarkana
CourtTexas Court of Appeals

Buster Cole, Cunningham, Cole & Southerland, Bonham, for appellants.

Henry Braswell, McWhirter & Braswell, Paris, for appellees.

FANNING, Justice.

This is an election contest brought by appellants against the designated statutory defendants challenging the declared results of an election held in the Reno Common School District in Lamar County on September 26, 1964, which election so held was on the question of whether the Powderly Rural High School District and the Reno Common District were to become consolidated. Appellants, residents of the Reno district, timely gave notice under the statute, and filed suit to have the election held void, and/or for a judgment declaring that the true results could not be ascertained and as a result the election be declared void. Issues were joined by amendments of the parties and the case proceeded to trial on appellants' amended petition, appellees' amended reply and answer, and appellants' trial amendment; this after the trial court had sustained numerous exceptions to appellants' amended pleadings. The appeal is on a limited statement of facts, and appellants have designated the points to be relied upon on appeal. Trial was to the court without a jury and resulted in a judgment denying the contest and sustaining the declared results of the election. Exception to the judgment was taken, notice of appeal was given to this court and the appeal was perfected. Appellants' amended motion for new trial was overruled by operation of law, and the case is now before this court for its review upon the limited appeal under proper designations of evidence made by the parties.

Appellants' first point of error is as follows: 'The trial court abused his discretion in this case by refusing to open the ballot box, then before the court, and ascertain for himself the true results of the election being contested, where the evidence clearly established that the election judge had certified to and returned a tally list showing the election lost, especially was such refusal abuse of discretion where the evidence showed a wide variance in the votes as counted by her and her certification of the results made by her, and where she used only one election box and all discarded, unused, unvoted and voted ballots were mixed in the one box.'

The Commissioners' Court of Lamar County, Texas, canvassed the election returns in the Reno District and declared the results to be 124 votes for consolidation and 116 against consolidation. The following documents were before the canvassing authority when it certified the results of the election and were in evidence in this cause before the trial judge:

1. The returns certificate, whereby the election judge, Mrs. Deweese, certified the total number of votes cast as being 242, the total vote for consolidation as being 124 and the total of the votes against consolidation as being 116. Mrs. Deweese testified that two votes were ruled void and not counted, thus making the total number counted 240.

2. A tally sheet signed by Mrs. Deweese, certifying the total votes 'for' as being 124 and the total votes 'against' as being 116, but on which the number of marks on the line for 'for' votes totals 93 when each vote is counted and the number of marks on the against line totals 111 when each marks is counted.

3. A tally sheet signed by Mrs. Mowrey as a clerk keeping the tally list and certifying the total vote 'for' as being 124 and the total vote 'against' as being 116 and on which the number of marks agree with the totals.

4. A poll list, which lists 242 persons as having voted.

As above stated, Mrs. Deweese testified that two votes were ruled void and not counted, thus making the total number counted 240.

Mrs. Deweese testified to the effect that in putting her marks on her tally sheet, she simply inadvertently failed to put down as many marks as there were votes for consolidation and that the numerical sum of 124 votes for consolidation, the total stated on her tally sheet, was correct. Mrs. Deweese further testified to the effect that the tally sheet kept by Mrs. Mowrey showing 124 marks and votes 'for' and 116 marks and votes 'against' was correct.

Mrs. Rice, another election official, testified, and her testimony confirms what Mrs. Deweese testified about the tally sheets and returns. Mrs. Rice testified that she counted the ballots at least three times and to the effect that the tally list signed by Mrs. Mowrey in showing 124 votes 'for' and 116 'against' reflected the actual vote. She further testified to the effect that the 93 marks on the 'for' line in Mrs. Deweese's tally list was not a correct tally of the votes but that the total figure of 124 'for' on Mrs. Deweese's tally list was in accordance with the count made by Mrs. Rice and the other election officials and to the effect that all of the election officials were in agreement when the polls closed that 124 votes had been cast 'for' and 116 votes had been cast 'against' consolidation.

The trial judge was the judge of the credibility of the witnesses and of the weight to be given their testimony and it was within his province to reconcile any inconsistencies, if any, in the evidence adduced.

The discrepany in the marks shown on Mrs. Deweese's tally sheet was explained by her. The trial judge also had the other tally sheet before him, the poll list, and he also heard the testimony of Mrs. Deweese and Mrs. Rice. Apparently the discrepancy in the marks shown on Mrs. Deweese's tally list, as compared to the total of 124 shown thereon, was satisfactorily explained to the trial court by the evidence adduced, both documentary and parol. We think the trial judge was well within the discretion lodged in him when he refused to open the ballot box by reason of the discrepancy in the tally list of Mrs. Deweese above referred to and no abuse of discretion on his part in refusing to open the ballot box for that reason, is shown under the record in this cause. In this connection see the following authorities: 21 Tex.Jur.2d 453; DeLa Garza v. Salinas, Tex.Civ.App., 255 S.W.2d 396, no writ (1953); Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296, error dism. (1961).

Appellants, under their statement and argument under their first point, also assert that there were many irregularities and violation of various articles of the election code in the conduct of said election and contend that by reason thereof the aggregate amounted to legal fraud and that the trial court abused its discretion in not opening the ballot box to ascertain the results of the election.

The burden was on the contestants to make allegations of fraud and support then by evidence of probative force showing that the ends of justice would be served before the trial court would be justified in opening the ballot box and conducting a recount. 21 Tex.Jur.2d 453; Sewell v. Chambers, Tex.Civ.App., 209 S.W.2d 363, no writ (1948); Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296, error dism. (1961). We quote from Jordan v. Overstreet, supra, as follows:

'Appellants' first point asserts that the trial court should have ruled that the election had failed to carry for consolidation, because the order of the Commissioners Court declaring the result of the election held in the Batson district, and other evidence, established the proposition did not receive a majority of the valid votes cast. The returns of the election from the Batson voting place made by its officials certified that there were cast 365 votes of which 138 votes were 'for' consolidation and 128 votes 'against' consolidation. The Commissioners Court on January 9, 1961, canvassed these returns and its order declaring the result of the election in the Batson district stated 'there were cast at said election 365 valid and legal votes of which number there were cast for consolidation 138 votes and against consolidation 128 votes.' The order then declared a majority of the qualified voters of said district voted for consolidation. Appellants attack the order of the Commissioners Court declaring this result of the election, asserting that on its face it was shown that a majority did not vote 'for' consolidation and that the proposition for consolidation should be declared lost in the Batson district. It is apparent that an error was made either in the figure 365 showing the total number of votes cast or in the number for or against consolidation. The returns of the election are in evidence. The poll list which was made listing each voter's name revealed that 265 votes were cast in the election. At the trial it was also shown that a Mrs Walter B. Johnson voted just before the polls closed, and her name was inadvertently left off the list, thus indicating there were actually 266 votes cast. The tally list of the election officials also was in evidence and reflected 138 votes for consolidation and 128 against consolidation. Ordinarily the order declaring the result of an election by the Commissioners Court is conclusive of the number of votes cast. But it appears the order here involved so declaring is self-contradictory. The returns prepared and delivered by the election officials to the Commissioners Court, we think, clearly show that the election officials made a mistake in the total number of votes cast, and the Commissioners Court carried forward the same mistake. The present is a situation comparable to that of a judgment of a trial court. If the judgment is ambiguous, the judgment roll may be examined to relieve the ambiguity. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S .W.2d 490, 107 S.W.2d 564, 567, 111 A.L.R. 1152. The trial court examined the ...

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  • Walker v. Thetford, 11480
    • United States
    • Texas Court of Appeals
    • June 21, 1967
    ... ... In an election contest the trial court is not only the judge of the credibility of the witnesses and the weight to be given their testimony, but it is also within the province of the court to reconcile the inconsistencies, if there be any, in the evidence brought forward. Day v. Crutchfield, Tex.Civ.App., Texarkana, 400 S .W.2d 377 (writ dsmd.) ...         Appellants rely upon the holding in Del Rio Independent School District, etc. v. Aldrete, Tex.Civ.App., San Antonio, 398 S.W.2d 597 (writ dsmd.), in contending that the Winfield Scott survey, where the Drennans lived, by ... ...
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