Harris v. Palmer

• Decision Date: 08 March 1910
• Citation: 108 P. 385,25 Okla. 770,1910 OK 75
• Parties: HARRIS v. PALMER.
• Court: Oklahoma Supreme Court

108 P. 385

25 Okla. 770, 1910 OK 75

HARRIS v. PALMER.

Supreme Court of Oklahoma

March 8, 1910

Syllabus by the Court.

The order of proof is largely a matter of discretion with the trial court, and hence evidence which is properly a part of plaintiff's case in chief may be permitted to be introduced out of its regular order, or the court in the exercise of a sound discretion may reopen a case for the introduction of relevant and material evidence, after both parties have rested; and, in the absence of a showing of surprise or prejudice or an abuse of discretion, such action will not be subject to reversal.

Where an election is held by duly appointed officers, the presumption is that the votes received and counted by them are legal, and the burden is on the party attacking the same to show their illegality.

In a contest over an election, where three separate and distinct ballots are cast, a party seeking to secure the rejection of any one of such ballots by reason of an alleged violation of section 5, art. 1. c. 17, Sess. Laws Okl. 1905, because of an intentional exposure of his ballot on the part of an elector the attacking party will be required to show that the identical ballot which he seeks to have excluded was the one exposed.

Error from District Court, Muskogee County; Malcolm E. Rosser Judge.

Action by T. R. Palmer against W. R. Harris.Judgment for plaintiff and defendant brings error.Affirmed.

Carl Pursel(J. E. Wyand and S. M. Ruth erford, of counsel), for plaintiff in error.

Chas A. Cook and A. A. Davidson, for defendant in error.

DUNN C.J.

This case presents error from the district court of Muskogee county, and grows out of a contest over the office of county commissioner of the first commissioner's district of that county.On a trial to the court judgment was rendered finding that the plaintiff was entitled to the office.A motion for new trial was duly filed and overruled, to which exception was saved, and the case has been brought to this court for review.

Two questions are presented for our consideration.First, it is contended that the court erred in overruling the objection of defendant to the introduction of testimony of plaintiff in rebuttal which did not in any way controvert or tend to controvert, or rebut the evidence theretofore introduced by the defendant, and which in effect permitted plaintiff to reopen his case after he had rested, and introduce an entirely new line of testimony.There is no showing made that defendant was taken by surprise, or that he lacked a full opportunity to meet in every particular the evidence so admitted, nor is there any showing that he was in any way prejudiced by the introduction of this evidence.The evidence tendered was in support of facts of which both parties had notice by the averments of the pleadings.The order of proof is largely a matter of discretion with the trial court, and hence evidence which is properly a part of plaintiff's case in chief may be permitted to be introduced out of its regular order, or the court in the exercise of a sound discretion may reopen the case for the introduction of relevant and material evidence, after both parties have rested; and, in the absence of a showing of surprise or prejudice or an abuse of discretion, such action will not be subject to reversal.Hannem v. Pence,40 Minn. 127, 41 N.W. 657, 12 Am. St. Rep. 717;Stephens v. Union Assurance Society,16 Utah, 23, 50 P. 626, 67 Am. St. Rep. 595;Graham & Co. v. Davis & Co.,4 Ohio St. 362, 62 Am. Dec. 285;West v. Cameron,39 Kan. 736, 18 P. 894.In the case of West v. Cameron, supra, the Supreme Court of Kansas on this proposition said: "The opening of a case for the purpose of receiving further evidence, after the case has been tried, but before any decision has been rendered therein, and the continuance of the case for such evidence, and the receiving of the same, are all within the judicial discretion of the court. ***"

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