Dennis v. Caughlin

• Decision Date: 30 April 1896
• Docket Number: 1,460.
• Parties: DENNIS v. CAUGHLIN.
• Court: Nevada Supreme Court

44 P. 818

23 Nev. 188

DENNIS v. CAUGHLIN.

No. 1,460.

Supreme Court of Nevada

April 30, 1896

Appeal from district court, Washoe county; George F. Talbot, Judge.

Proceeding by John H. Dennis against W. H. Caughlin to determine whether defendant or John Hayes was elected sheriff of Washoe county. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Thos E. Haydon, for appellant.

Torreyson & Summerfield, for respondent.

BELKNAP J.

This is the second appeal in this case. Dennis v. Caughlin, 41 P. 768. As stated in the former opinion, the question is whether John Hayes or William H. Caughlin was elected sheriff of Washoe county. The district court rendered judgment in favor of Caughlin. It was admitted at the trial that Hayes had received 538 votes, and Caughlin 527, exclusive of the Glendale and Salt Marsh precinct returns, and 2 other ballots counted for defendant. The errors assigned consist in these returns and the 2 ballots.

In our view, it will be unnecessary to consider the rulings of the district court further than the Glendale returns. The count of the ballots of this precinct showed that Hayes received 35 votes, and Caughlin 33. If these ballots be counted irrespective of other matters in the record, Hayes would be elected by 13 votes. On the other hand, the canvass by the election precinct officers shows that Hayes received 24 votes and Caughlin 37 votes. This would elect Caughlin by 2 votes. The question, then, to be determined, is whether the canvass by the election officers upon the night of the election, or the ballots themselves, should have controlled the district court in its decision. It was shown at the trial that after the official canvass by the board of county commissioners and until the first trial, the ballots have been kept in a cupboard in the county clerk's office. The cupboard had been selected by the clerk and his deputy as the most secluded place for their keeping. They were inclosed in the envelope or package in which they were originally received and over this was sealed a slip or band of paper, upon which the name of the clerk was written. Old books and papers were placed over them, for the purpose of concealment. No one was supposed to have known where they were except the persons mentioned and apparently the package had not been disturbed when it was introduced in evidence. The cupboard was unlocked, and persons connected with the office had keys to the office door. On the other hand, evidence was adduced tending to show that there was some feeling existing against the defendant at Glendale, caused by his having been instrumental in enforcing the law against fishing in that locality, and arresting offenders against it. In counting the votes by the board, an unusual number of blank votes for the office of sheriff were noticed, some...