Eakin v. Campbell
| Decision Date | 16 October 1901 |
| Citation | 87 N.W. 991,10 N.D. 416 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Foster County, Glaspell, J.
Action by Zerlina S. Eakin against L. C. Campbell. Judgment for plaintiff. Defendant appeals. Affirmed.
Affirmed.
C. E Leslie and Newman, Spalding & Stambaugh, for appellant.
F Baldwin, for respondent.
This is an election contest. The plaintiff and defendant were rival candidates for the office of superintendent of schools for Foster county at the general election held November 6, 1900, and their names appeared upon the official ballots at said election, in their respective party columns. In canvassing the precinct returns, the county canvassing board determined that 431 votes had been cast for plaintiff, and 433 votes for defendant, or a majority of two for defendant. In accordance with such canvass, a certificate of election was issued to the defendant. Thereafter, and within the time allowed by law, the plaintiff, Zerlina S. Eakin, instituted this contest under the provisions of article 12 of chapter 8 of the Political Code (Rev. Codes, 1899, § § 563, 575). The correctness of the returns and canvass as to 12 of the 13 precincts into which the county is divided is not challenged. Plaintiff in her notice of contest attacks one precinct only, namely, Carrington precinct. As to this she alleges that, if the legal votes cast at said precinct were properly counted and canvassed, she would have a majority of all votes cast for said office. The issues joined by the notice of contest and defendant's answer thereto, so far as material, relate entirely to Carrington precinct. The trial court found, upon an inspection of the ballots of that precinct, that the plaintiff had a majority of seven of all votes cast for said office. This result was reached by adding to the unchallenged returns of the 12 precincts the vote of Carrington precinct, as determined by an examination of the ballots returned by the precinct officers. Judgment was ordered and entered directing the county auditor to issue a certificate of election to the plaintiff. From that judgment, the defendant prosecutes this appeal.
A statement of case is contained in the record transmitted to this court, which was apparently settled with a view to securing a retrial in this court such as may be had in civil actions tried under the provisions of § 5630, Rev. Codes, 1899. The statement has a certificate of the trial judge attached thereto reciting that it contains all of the evidence offered and proceedings had, and contains a statement that the appellant desires this court to review the entire case. An examination of the statement shows that it does not contain all of the evidence offered. None of the exhibits, which are shown to have been offered in evidence at the trial--and they are 26 in number--are contained in the statement. Neither are they otherwise officially identified as constituting a part of such statement. These include the poll books, precinct returns, and such disputed ballots from Carrington precinct as were submitted to the trial court. Upon this state of facts, this court is without jurisdiction to try the case de novo under the section of the Revised Codes above referred to. Appellants who would avail themselves of the right to a retrial in this court under said section must see to it that the statement of case settled does in fact contain all that is necessary to authorize such retrial. Where a review of the entire case is demanded, and such is the demand in this case, the statement must contain all of the evidence offered and proceedings had; otherwise the power to retry or review the evidence does not exist. It is imperative that exhibits offered shall be actually embodied in the statement, or be officially made a part thereof, when it is not feasible to physically embody them therein. This has been the uniform holding of this court in a long series of decisions. The judge's certificate that the statement contains all of the evidence offered and proceedings had is not conclusive. Bank v. Davis, 8 N.D. 83, 76 N.W. 998; Register Co. v. Wilson, 9 N.D. 112, 81 N.W. 285 and cases cited in opinion; also Loan Co. v. McLeod, 10 N.D. 111, 86 N.W. 110; Giels v. Fluegel, 10 N.D. 211, 86 N.W. 712.
A number of miscellaneous papers have been filed in this court with the record in the case which constitute no part of the judgment roll. Among them are certain shorthand notes and files in another election contest case, also certain poll books and ballots, which may be the poll books and ballots referred to in the statement as having been offered in...
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