McDonald v. Wood

• Decision Date: 29 April 1898
• Citation: 24 So. 86,118 Ala. 589
• Parties: MCDONALD v. WOOD. [1]
• Court: Alabama Supreme Court

24 So. 86

118 Ala. 589

MCDONALD v. WOOD. ^[1]

Supreme Court of Alabama

April 29, 1898

Appeal from circuit court, Walker county; James J. Banks, Judge.

Proceeding by W. D. Wood against Alexander McDonald to contest an election. Judgment for contestant, and contestee appeals. Reversed.

This was a proceeding instituted by W. D. Wood to contest the election of a mayor for the town of Carbon Hill, a municipal corporation situated in Walker county, Ala. The charter of the town of Carbon Hill (see Acts Ala. 1890-91, pp. 640, 641) provides that this contest is to be instituted in the same way as contests of the election of probate judges. Acts 1892-93, p. 474, provides for the contest of the election of judges of probate. The contestant filed in the office of the clerk of the circuit court his statement of contest, duly verified, on which was indorsed his security for costs. The suretyship was in these words, "We hereby acknowledge ourselves security for the costs in this contest," and signed by the sureties. The contestee filed a plea in abatement on the ground that the obligation of suretyship was void, under the statute of frauds, because it did not express the consideration. The court sustained a demurrer to this plea. The contestee also moved to dismiss the contest on the same ground, and the court overruled the motion. Upon the examination of Laird, who was appointed "fixer," under the election law, he was asked the following question "Will you please tell the court of Mr. Linnehan's performance about putting you out?" Witness answered "After the votes were all polled, and before they went to count them, they got up a talk as to whether I should see the votes counted or not. I asked them to let me stay in the room and stand behind the man who counted the ballots, and they refused. I asked them why? They said they had been accused of fraud, and would not let me see. I told them that was a poor excuse. I said, 'If a man ain't done wrong, and don't aim to ___"' Contestee objected to this evidence, because Laird had no legal right to be in the room, or right to demand to see the count of the ballots. The court overruled the objections, and contestee excepted. Among the 64 witnesses who swore they voted for R. G. Cary for mayor was one A. O. Everett. Contestee gave notice to contestant that L. Everett was an illegal voter, and had voted for R. G. Cary for mayor. Contestee asked A. O. Everett if he had been at the time of said election, for one year next prior thereto, a resident citizen of the state of Alabama. Contestant objected to said question on the ground that contestee had failed to serve notice on contestant of his purpose to take evidence to show that witness was an illegal voter. Contestee then asked witness if he was not called and generally known by the name of "Lonny." Witness replied that he was generally known by that name, but his name was "Alonzo." Contestee again asked witness if he were not a citizen of Texas less than 12 months prior to said election. Contestant objected. The court sustained the objection, and contestee excepted. Contestant asked a witness (O. R. Morris) the following questions "Do you know anything about these lines here?" (referring to section and range lines on map, running north and south, between sections 25 and 30, and sections 24 and 25, and 19 and 20;) "Were you present when they were run out, at any time?" Contestee objected on the ground that witness was not shown to have knowledge of the correctness of the survey, and was not an expert. The court overruled the objection, and contestee excepted. Witness answered "Yes, sir; I had Myers to run it out for me, about six years ago, to locate the lines. I had bought some land there, and did not know where it was. The northern boundary line of sections 25 and 30 would cross the railroad about one-eighth of a mile from Bynum's house. The railroad curves so as to cross the section line at right angles. The section line between sections 25 and 30 is also a range line between ranges 9 and 10. I have always known it as a range line, and have never heard it spoken of as a section line. I have lived at Carbon Hill seven years." The judge tried the case without the intervention of a jury, and rendered judgment against the contestee. This appeal is prosecuted from that judgment; and the rulings of the court on the demurrer and the motion to dismiss, the rulings upon the evidence, and the judgment are assigned as error.

H. L. Watlington and Wm. H. Smith, Jr., for appellant.

Coleman & Bankhead, for appellee.

HEAD J.

There was no merit in the several objections made to the security for costs. The sureties themselves executed the obligation. It shows the consideration was the institution of the contest, and bound the sureties for the costs thereof. The case is unlike Bullard v. Johns, 50 Ala. 382.

The bill of exceptions does not purport to contain all the evidence. We cannot, therefore, review the court's findings of fact. But the judgment must be reversed by reason of the refusal of the court to permit the contestee to prove that A. O. Everett, or "Lonny Everett," as he was generally called, who had voted for Cary, was not a legal voter. The contestee had served notice on contestant of the names of persons charged by him to have voted illegally for Cary, among which was the name "L. Everett." This man's name was "Alonzo O. Everett." He voted for Cary at the election. The court refused to permit contestee to prove that he had not at the time of the election been a resident of the state for 12 months, on the ground that the name "L. Everett," as it appeared in the notice, did not legally notify contestant of the purpose to make such proof. There was no exception by contestant to the sufficiency of the notice, on its face, on account of any of the names being stated with only initials of Christian names, as many of them were stated, or on any other account. Everett being generally known by the Christian name of "Lonny," in legal contemplation that was as efficaciously his Christian name as "Alonzo." By it he could legally have been indicted, tried, and convicted for any crime he may have committed, against any plea of misnomer. The notice, as contestant accepted it, was sufficient, and the proposed proof ought to have been admitted. We cannot affirm that this error did not affect the result. Under the ruling the court could not exclude, in its final finding, the...