Dorey v. Lynn

• Decision Date: 02 April 1884
• Citation: 31 Kan. 758,3 P. 557
• Parties: W. H. DOREY v. T. W. LYNN
• Court: Kansas Supreme Court

3 P. 557

31 Kan. 758

W. H. DOREY v. T. W. LYNN

Supreme Court of Kansas

April 2, 1884

Error from Bourbon District Court.

AT the September Term, 1883, the defendant Lynn recovered a judgment against the plaintiff Dorey, who brings it here for review. The opinion states the case.

Judgment affirmed.

S. W Blodgette, and W. W. Martin for plaintiff in error.

J. D McCleverty, and J. H. Sallee, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of quo warranto, brought in the district court of Bourbon county, by W. H. Dorey against T. W. Lynn, for the purpose of having the question determined, which of the two, Dorey or Lynn, was elected to the office of city councilman for the second ward of the city of Fort Scott, a city of the second class. The election was held on April 3, 1883, and either Dorey or Lynn was unquestionably elected to said office. The case was tried by the court without a jury, and the court found in favor of the defendant and against the plaintiff, and rendered judgment accordingly. The plaintiff brings the case to this court.

It appears from the evidence and the findings of the court below that the election was conducted regularly and properly, and that returns thereof were made to the county clerk and to the city clerk, by sending to the county clerk, under seal, one of the poll books, and by sending to the city clerk the ballot box, the ballots cast, sealed up in an envelope, and the other poll book, both the ballots and the poll book being sealed up in the ballot box. On April 6, 1883, the city council met as a board of canvassers, as required by statute, (Comp. Laws of 1879, ch. 19, § 18,) and canvassed the returns made to the city clerk. Finding that the tally sheet from the second ward was blotted, and not in a very satisfactory condition, the canvassing board opened the envelope containing the ballots, and counted the ballots. The returns of the judges and clerks of the election showed that Dorey received 144 votes, and Lynn 140 votes; but the ballots, as counted by the canvassing board, showed that Dorey received only 138 votes, and Lynn 140 votes; and there were some scattering votes. Lynn was declared to have been elected, and the certificate of election was duly issued to him; and he qualified and took possession of the office.

The only question to be determined in this case is, whether Lynn or Dorey was elected to the said office of councilman: From the evidence and the findings of the court below, we think there can be but little doubt that Lynn was elected, but it is claimed that the evidence showing the same was not competent or proper evidence. Such evidence was mainly the ballots cast by the voters at said election. But it is claimed that, under the facts of this case, the...