Mc, Cardle v. Holcomb

• Decision Date: 20 November 1939
• Docket Number: No. 27242.,27242.
• Citation: 23 N.E.2d 470,216 Ind. 267
• Parties: Mc,CARDLE v. HOLCOMB.
• Court: Indiana Supreme Court

216 Ind. 267

23 N.E.2d 470

Mc,CARDLE

v.HOLCOMB.

No. 27242.

Supreme Court of Indiana.

Nov. 20, 1939.

Election contest by Robert P. McCandle against John W. Holcomb. From a judgment for the contestee, contestant appeals, and the appellee assigns cross-error.

Affirmed.Appeal from Circuit Court, Decatur County; George W. Long, Special judge.

John E. Osborn, of Greensburg, for appellant.

Turner & Woodfill, of Greensburg, for appellee.

FANSLER, Chief Justice.

This is an appeal from a judgment in an election contest. The appellant and appellee were candidates for Mayor of the City of Greensburg in the 1938 election. The canvassing board certified the appellee as elected by fourteen votes. A recount commission reduced the number of votes for each candidate, but found that the appellee had been elected by twenty-seven votes. The case was tried upon the appellant's complaint to contest. The trial court found that each of the parties had received the same number of legal votes, and there was judgment for the contestee.

The appellant has assigned error and the appellee cross-error upon the rulings of the court admitting and rejecting certain ballots.

The first question presented involves five absent voters' ballots. The ballots bear the seal of the clerk and the signature ‘D. D. Morgan,’ without any designation as to who ‘D. D. Morgan’ may be. It is conceded, however, that ‘D. D. Morgan’ was the clerk of the circuit court, and that the signature upon the ballots was his signature, and we think there can be no doubt that the court could take judicial notice of the fact that ‘D. D. Morgan’ was its clerk. The objection in that the word ‘clerk,’ or other official designation, did not accompany the signature. The statute, section 29-2606, Burns' 1939 Pocket Supp. (Acts 1935, ch. 316, § 6, p. 1511), provides: ‘Before mailing or delivering any ballot the clerk shall affix his official seal and place his signature near the lower left-hand corner on the back thereof leaving sufficient space on the margin of such ballot for the initials of the poll-clerks.’ It is noted that the word ‘official’ precedes the word ‘seal,’ and if the word ‘official’ had also preceded the word ‘signature,’ there would be basis for construing it as meaning that there must be some designation of the official character of the person signing. The purpose of this provision of the statute is to safeguard and identify ballots which are sent out for absent voters' use. It cannot be doubted that a ballot signed by the clerk with his own personal signature, and bearing the official seal of his office, is sufficiently authenticated to provide the protection desired, and it is not contended here that by any possibility the ballots used and voted were not the ballots furnished by the clerk, or that, by the omission of an official designation of title after his name, it was possible that any other or different or unofficial ballots might have been substituted. The appellant relies upon the case of Reach v. Quinn, 1909, 159 Ala. 340, 343, 48 So. 540. The action was for malicious prosecution. The warrant in the criminal prosecution was excluded from the evidence. The statute quoted in the opinion provides: ‘The warrant must be signed by the magistrate, with his name and initials of office, or the same must in some way appear from the warrant.’ The court said: ‘The statute in the latter clause of the foregoing extract seems to emphasize the requirement as...