McIver v. Starkey, 3229
| Decision Date | 07 October 1954 |
| Docket Number | No. 3229,3229 |
| Citation | 271 S.W.2d 314 |
| Parties | C. L. McIVER, Contestant, Appellant, v. Edison A. STARKEY, Contestee, Appellee. |
| Court | Texas Court of Appeals |
MacL. Bennett, Jr., Normangee, for appellant.
B. R. Reeves, Palestine, Joe J. Newman, Wiley B. Thomas, Jr., Groveton, for appellee.
This is an appeal from a judgment of the District Court of Leon County disposing of a primary election contest which was brought under the provisions of Art. 13.30 of Vernon's Tex.Civ.Stats. Election Code. The names of appellant and appellee appeared on the official ballot in the second primary election, which was held on August 28, 1954, as candidates for nomination as the Democratic nominee for the office of County Judge of Leon County. In due time, the Democratic Executive Committee of Leon County canvassed the returns of the primary election and duly certified the name of appellee as the party candidate, he having received 1908 votes and appellant having received 1934 votes in the primary election so held. Appellant brought this suit at the time and in the manner required by law, alleging as grounds for the relief sought by him fraud and certain mistakes and irregularities in the holding of the election in Precinct No. 8, known as the Jewett box, and Precinct No. 18, known as the Concord box.
After the issues had been properly joined by the pleadings of the respective parties, the case was heard before the court below without a jury and, upon the conclusion of the evidence, the court rendered judgment denying the contest of appellant and certifying appellee as the Democratic nominee for the office of County Judge of Leon County, to which appellant duly excepted, gave notice of appeal to this Court and filed the record here on October 2, 1954, in the manner and within the time required by law.
Several times during the proceedings at the hearing, appellant moved the court to open the ballot box containing the ballots cast in Precinct No. 8 and to recount the same; but the court overruled such motion each time it was presented. Appellant predicates his appeal upon the following point or error, viz.: 'The court erred in refusing to open a ballot box containing the ballots cast in voting Precinct No. 8 and recounting the same, as provided in Sec. 10 of Art. 13.30 of the Election Code of Texas, in that the pleadings of the appellant of fraud, illegality, mistake and errors were plead and were supported by some evidence and the affidavits of reputable persons.' On the other hand, appellee says the case is now moot and the only proper judgment to be entered herein is an order dismissing the appeal, and he has filed a motion to that effect. Subject to such motion, which we have decided to overrule, appellee says the trial court did not err in refusing to open the ballot box in Precinct No. 8 because appellant's charge of fraud was not supported by any competent evidence of probative force.
Although Sec. (10) of Art. 13.30, Vernon's Tex.Civ.Stats., authorizes district courts to unseal and reopen ballot boxes in primary election contests in cases where fraud or illegality is charged, 'if such charges of fraud or illegality be supported by some evidence, or by...
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