Fishback v. Bramel

• Citation: 6 Wyo. 293,44 P. 840
• Parties: FISHBACK v. BRAMEL
• Decision Date: 27 April 1896
• Court: Wyoming Supreme Court

44 P. 840

6 Wyo. 293

FISHBACK v. BRAMEL

Supreme Court of Wyoming

April 27, 1896

Amended petition filed in the District Court, March 26, 1895.

ERROR to the District Court for the county of Albany, HON. J. H HAYFORD, Judge.

This was an action brought by William H. Fishback to contest the election of Charles W. Bramel to the office of county and prosecuting attorney of Albany County. The material facts are stated in the opinion.

Judgment affirmed.

William H. Fishback, for plaintiff in error. Cited State v. Allen (Neb.), 62 N.W. 35; 95 S. C., 16; Budd v Holden, 28 Cal.; Ellis v. Glaser (Mich.), 61 N.W. 543; Sawin v. Pease (Wyo.); Bradstreet v. Thomas, 4 Pet., 26; R. S. Secs. 2645, 2647, 2648.

Charles W. Bramel, for defendant in error. Cited on the motion to dismiss, 40 Ill. 57; Gray v. Schenck, 3 How. Pr., 231; Parker v. Hastings, 12 Ind. 654; Dedford v. Urbain, 42 Ind. 476; Gardner v. Stover, 43 Ind. 356; Millikan v. State, 70 Ind. 283; Donovan v. Stewart, 15 Ind. 493; Crisman v. Mathers, 23 Ind. 319; Crawford v. Heysinger, 123 U.S. 589; Branch v. Tex. L. Co., 53 F. 849; McGill v. Monette, 1 Ala. Sel. cases, 285; Jordan v. Sayre, 24 Fla. 1; Roberts v. Wilkinson, 34 Mich. 129; Smith v. Bean, 46 Minn. 139; 18 Ind. 285; 20 id., 237, 255; 6 id. , 82; 13 id., 489; 14 id., 88; 49 id., 98; 58 id., 538; Cronkhite v. Bothwell, 3 Wyo., 739; U. S. v. Trabing, id., 144; 17 O., 495; 3 Wyo. 325; 1 Cin., Sup. Ct., 401; 10 Cal. 298; 55 Conn. 31; 33 Mich. 173; Wolcott v. Bachman, 3 Wyo., 336; Wyo. L. & T. Co. v. Holliday, id., 386; Newmarks v. Marks, 28 P. 960; Wilson v. Lucas, 78 Tex. 292; 59 N.W. 372; 108 N.C. 514; 57 N.W. 928; 60 N.W. 320; 38 Ind. 13; 19 Pa. 235; 71 Cal. 223; 52 Minn. 51; 54 Minn. 32; 110 Ind. 203; 60 Ind. 154; 54 Cal. 588; 7 Mont. 12; 51 Ind. 396.

On the merits counsel cited, Powell v. Hornan, 6 S.W. 506; Kingbery v. Berry, 94 Ill. 518; Albert v. Tuohig, 53 N.W. 582; Coughlin v. Beard, 2 P. 737; Martin v. Miles, 58 N.W. 732; Hughes v. Holman, 32 P. 298.

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

The defendant in error filed a motion to dismiss the proceedings in error. The case was heard upon such motion and the merits at the same time, with the understanding that if the motion should not be sustained, the case itself was under advisement by the court for final disposition.

The motion to dismiss states as grounds therefor, in substance:

First. That the brief of plaintiff in error does not contain a statement of the points and authorities relied on, as required by law and Rule 14 of this court.

Second. That the petition in error fails to distinctly set forth the errors complained of, or any errors cognizable by this court.

Third. That the certificate of the official stenographer does not allege and state that the bill of exceptions contains all the evidence in the cause, but that it appears thereby that other evidence not embraced in the bill was adduced upon the trial.

Respecting the first ground of the motion, the brief which is attacked presents certain propositions and authorities; but the contention seems to be that the same do not sustain the party filing the brief. If that is the case, the effect of the rule is misconceived. The rule is not violated merely because the points relied on, or the authorities cited, are inapplicable.

The petition in error assigns error in the findings and judgment of the court, charging the same to have been contrary to law and not sustained by sufficient evidence; also in the ruling of the court sustaining the objection to the introduction in evidence of the original ballots cast at the election (this being a contested election case). The assignment in the last-named particular is not as pointedly made as might be desirable, but it is sufficiently intelligible to indicate the error intended to be charged. Regarding the third ground upon which the motion is based, the allegation that it appears by the certificate of the stenographer that evidence not contained in the bill of exceptions was given upon the trial is disproved by reference to the certificate itself. That certificate merely states that "the within is all the oral evidence taken by me in the above entitled case at the time of the trial, being a full and complete transcript thereof." This does not indicate that "the within" constituted the entire bill, neither does it show that there was any other evidence than that which was oral, and written out by the stenographer. The point, however, is not well taken for a broader reason. In this court the certificate of the stenographer furnishes no vitality to a bill of exceptions. It may have been persuasive upon counsel and the court in the matter of settling and allowing the bill, but it is otherwise unimportant so far as the verity of the bill is concerned. The law has required the bill to be otherwise signed and authenticated. The stenographer's certificate not being provided for by law as a part of the bill, may be and usually is entirely omitted therefrom; therefore if embodied in the bill, or record, at all, it is immaterial whether it states that the bill contains all the evidence given in the cause or not; that fact must be otherwise disclosed, either in the bill itself or in the certificate of the judge who allows and signs the same. The motion to dismiss must be overruled.

At the general election held in November, 1894, the parties to this cause were opposing candidates for the office of county and prosecuting attorney of Albany County. Plaintiff in error was the nominee of the Republican party, and defendant in error of the Democratic and People's parties. The name of the latter was printed twice upon the official ballot, once as the nominee of the Democratic party and once as the nominee of the People's party. This was improper under our system, and the statutes of this State regulating the preparation of official ballots. This was decided in the recent case of Sawin v. Pease (supra), 6 Wyo. 91, 42 P. 750. It was also held in that case that where no objection in that respect was made, and no application to the court, or judge, or otherwise, as expressly authorized by law prior to the election to have the mistake corrected, the party complaining must, after the election, be held to have waived the irregularity. The law requires that the candidates and their agents shall have an opportunity to inspect the ballots before they are sent out, and that any mistake shall be corrected without delay, and further, that upon application to the district court or judge by any elector, the officials preparing the ballots may be required to correct any error therein. The amended petition in this case alleged that after the specimen ballots were in the hands of the county clerk, the plaintiff entered his protest against printing the name of defendant twice upon the ballot, and that he complied with the statute for the purpose of having the ballots corrected, but that his request was refused, and his protest disregarded, and that plaintiff did not discover the fact that the ballots were so finally printed in time to present the error for correction to the district judge. The plaintiff produced M. N. Grant, who was the Republican nominee for sheriff at said election, as a witness, who testified that he insisted to the county clerk that the names of persons who had been nominated both by the Democratic and People's parties should not be placed on the ballot twice; that he informed him he did not believe it was right, that it might deceive, and some of the voters might think they were two different persons. That the county clerk seemed to agree with him, but he made no promise as to his future action in the premises. This conversation occurred before the preparation of the ballots, at least that was the impression of the witness, the clerk having approached him upon the subject, apparently seeking information or advice. The witness also testified in response to inquiries made by the court that he did not make any objection to the clerk after the ballots were printed.

C. E. Carpenter was a witness who represented one of the People's party candidates prior to the election; and, after the sample ballots had been prepared, but anterior to the printing of the official ballots, he interviewed the clerk and objected to the name of any candidate being placed on the ballot more than once. The county attorney was present during a part of that interview, and the witness left under the impression that each name was to be printed on the ballot but once, although he expected the clerk to act according to the county attorney's decision. Mr. Carpenter did not mention the plaintiff's name, and did not represent or act for him. He did not see the official ballot until the day of election. The plaintiff, about ten days before election, heard about the ballots, but did not see them until about four or five days later; he then attempted to see the district judge, but found him out of town; and about the same time absented himself from the city. He made at least no formal protest to the county clerk. It is clear that the conversations which the witnesses Grant and Carpenter had with the clerk occurred ten days or more prior to the election. No formal protest, or demand, for correction was presented. The testimony does not support the allegation that plaintiff was unavoidably prevented from making the proper application to enforce the correction of the error. In our opinion the evidence is not sufficient to authorize this court to disturb the findings and conclusions of the trial court in this regard.

Another point of contest was that by reason of defendant's name appearing upon the official ballot twice, four hundred and twenty-six electors...