McKittrick v. Pardee
| Decision Date | 19 November 1895 |
| Citation | 65 N.W. 23,8 S.D. 39 |
| Parties | McKITTRICK v. PARDEE. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. When the elector makes a mark or cross in the circle at the head of a party ticket, and erases no name thereon, the vote must be counted for the entire party ticket. Vallier v. Brakke (S. D.) 64 N.W. 180, followed.
2. A cross made at the head of a party ticket, but not in the circle "printed for that purpose," is a nullity and the vote cannot be counted for candidates upon that ticket not otherwise marked as prescribed by law. Vallier v. Brakke (S. D.) 64 N.W. 180, followed.
3. When a cross is made in the circle at the head of a party ticket and no name thereon erased, crosses at the left of the names of candidates thereon are without effect, and should be disregarded.
4. The law confers no authority upon an elector to write the name printed upon one party ticket upon another party ticket.
5. Crosses in the circle at the head of two or more party tickets neutralize each other as indicating the intent of the elector to vote either of the party tickets.
6. An elector who erases the names of all the candidates on all the party tickets except one does not thereby vote the ticket on which the names are not erased, unless he makes a cross in the circle at the head of such party ticket, or makes a cross at the left of the names of the candidates for whom he desires to vote upon such ticket.
7. When there is no cross made in the circle at the head of any party ticket, no erasures are necessary. The elector may designate the candidate for whom he desires to vote by making a cross to the left of the name of such candidate.
8. A cross to the right of a candidate's name is a nullity and should be disregarded.
Appeal from circuit court, Brule county; D. Haney, Judge.
Election contest between William H. McKittrick against O. A. Pardee. Judgment for plaintiff, and defendant appeals. Reversed.
John H King and John D. Rivers, for appellant.
Edwin Greene and S. H. Wright, for respondent.
This was an election contest proceeding. Decision in favor of plaintiff, and defendant appeals. Before proceeding to consider the case on its merits, it will be necessary to dispose of a preliminary motion to dismiss the appeal, made by respondent. The motion is made upon the following grounds: "(1) That said appeal has never been perfected by the service of an undertaking; (2) that it does not appear what judgment, or that any judgment, was rendered in said cause, from which an appeal could be taken; (3) that the notice of intention to move for a new trial was not served within the time required by law; (4) that appellant has served no brief as required by the rules of court and by the order of court of August 15, 1895; (5) that appellant's abstract is not accompanied by an index of its contents." By the original abstract, additional abstract by respondent, and the original records, which, by reason of the conflict in the abstracts, we are required to examine, it appears that the notice of appeal was duly served upon the attorneys for respondent, and that the undertaking on appeal was served upon the respondent personally, but not upon the attorneys for the respondent. It further appears that the notice of appeal was duly served on the clerk of the court, and that the notice of appeal and undertaking were filed with the clerk on the same day. It will thus be seen that the notice of appeal was properly served on the attorneys and upon the clerk, and duly filed, and that the undertaking was served upon respondent, and filed with notice of appeal with the clerk. The question, therefore, presented is, did the failure to serve the undertaking on the attorneys prevent this court acquiring jurisdiction of the appeal?
Section 5215, Comp. Laws, provides that Section 5336 provides that, "where a party shall have an attorney in the action, the service of papers shall be made upon the attorney instead of the party." And section 5231 provides: "The original [[[[[undertaking] must be filed with the notice of the appeal and a copy *** must be served with the notice of appeal." Construing these three sections together, it would seem that when the adverse party has an attorney of record, the notice of appeal and undertaking should be served upon such attorney. Such seems to have been the view taken by the supreme court of California under quite similar provisions of the Code of that state. Abrahms v. Stokes, 39 Cal. 150. Had service of the notice of appeal in this case been made upon the respondent only, a serious question would be presented. But as the service of the notice of appeal was properly made upon the attorneys of record, and an undertaking was in fact filed with the notice of appeal, we think the service of the undertaking upon the respondent did not render the undertaking invalid, or release the sureties thereon. It was at most an irregularity that did not affect the jurisdiction of this court over the appeal. But, if we are not correct in this conclusion, we think the general appearance of the respondent in this court, and filing an additional abstract, etc., was in effect a waiver of any defect in the service of the undertaking.
The second ground of the motion is that it does not appear from the abstract that any judgment was ever entered in the action. It is true that the abstract omits to state in terms that a judgment was entered. But respondent, in his additional abstract, does not assert that no judgment was, in fact, entered before the appeal was taken; and he relies entirely upon the omission of the proper statement in the abstract on the part of the appellant. While it is essential that it should affirmatively appear in the appellant's abstract that a judgment claimed to have been appealed from was duly entered prior to the taking of the appeal, in order that it may affirmatively appear from the abstract that this court has jurisdiction of the appeal, yet, when the judgment has in fact been entered, but the statement of the fact is omitted in the abstract, an appellant will ordinarily be allowed to amend his abstract on such terms as may be imposed, by making the proper statement in the abstract by an amendment thereto. In the case at bar the appellant, on the hearing, moved for leave to amend the abstract by supplying the omission. This motion is granted; but for the purposes of an early decision, that seems to be required in election contest cases, we shall assume that the amendment has been made as required by the rules of this court. The proposed amendment must, however, be formally made in the abstract before the record leaves this court, by inserting the omitted statement.
The third ground of the motion is that notice of intention to move for a new trial was not served within the time prescribed by the statute. The respondent asserts in his additional abstract that a notice was served on January 10, 1895. That on January 18th appellant withdrew the original notice, and served an amended and substituted notice. Assuming that the notice of intention was not served in time, this fact would not constitute good ground for dismissing the appeal. An appeal may be taken from the judgment on the judgment roll alone. The failure, however, to serve the notice of intention within the time, might preclude this court from reviewing any question of the sufficiency of the evidence to sustain the decision of the court, which can only be reviewed after a motion for a new trial has been made and determined. In this case, however, it appears from the abstracts that a motion was made by the respondent in the court below to strike from the files the appellant's amended and substituted notice of intention, on the ground that it was served too late. That court denied the motion, and granted the appellant further time in which to move for a new trial. This, in effect, was an extension of time, or the fixing of a new time, under section 5093, Comp. Laws, which confers upon the trial court the power to grant such extension or fix another time, upon good cause shown. This court, in the absence of any showing to the contrary, will presume good cause shown. Johnson v. Railroad Co. (N. D.) 48 N.W. 227.
The fourth and fifth grounds relied on for a dismissal of the appeal are not, under the circumstances disclosed in this case, such as to require this court to...
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