McMahon v. Crockett

• Decision Date: 02 September 1899
• Citation: 12 S.D. 11,80 N.W. 136
• Parties: PETER F. MCMAHON, Contestant and respondent. v. HORACE CROCKETT, Respondent and appellant.
• Court: South Dakota Supreme Court

12 S.D. 11

80 N.W. 136

PETER F. MCMAHON, Contestant and respondent.

v.

HORACE CROCKETT, Respondent and appellant. South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Joseph. B. Moore, Judge Reversed Ivan W. Goodner Schrader & Lewis Attorneys for appellant. Chauncey L. Wood, Charles J. Buell Horner & Stewart Attorneys for respondent. Opinion filed September 2, 1899

FULLER, J.

This statutory contest for the office of county auditor resulted in a judgment predicated upon findings of fact favorable to Peter F. McMahon. Horace Crockett, the opposing candidate, holding the certificate of election, based upon the determination of the board of county canvassers that upon the face of the returns he had received a majority of one vote, prosecutes this appeal.

As the notice of intention to move for a new trial specifies all the errors relied upon, and is made a part of the bill of exceptions settled by the court in accordance with a stipulation entered into by counsel for the respective parties, there is no merit in the contention that appellant is not entitled to a review of the evidence because the bill contains no specifications of error. Mt. Terry Min. Co. v. White,(1898); Reagan v. McKibben,(1898). Under our view of the law applicable to the facts presented, an assignment of error relating to the insufficiency of the evidence to support the following findings of fact is the only matter essential to a determination of this appeal:

“That the court finds that after said election, and within the time limited by law therefor, the ballot boxes from each precinct in said county, duly sealed as provided by law, were returned by the judges and clerks of election of each precinct to the chairman of the board of corn missioners of said county, and that said ballot boxes, and each of them, were duly and properly sealed as the law provides, and have ever since, and until the recount of said ballots at the trial hereof, been securely kept under seal, and in no manner changed, altered, or tampered with, and that said ballots, and each of them, so as aforesaid recounted by the court, were the original ballots used and cast by the respective legally qualified electors of said county, and in no manner changed or altered. The court finds that there is no evidence whatever to prove or tending to prove the allegations of fraud contained in the defendant’s answer herein.”

As to the treatment of the ballot boxes, it is undisputed that they were all returned to respondent, Peter F. McMahon, auditor, together with the keys; that he opened a large number of them for the purpose of getting the poll books to compare, and, for the avowed purpose of ascertaining the result of the vote on all the officers, he testified that he opened the ballot box used in the Second ward precinct of Rapid City, which, at his instance and request, had been delivered to him after midnight, at his sleeping apartment, by one of the judges of election, from whose amply corroborated testimony it quite clearly appears that material alterations in some of the ballots contained therein have been effected. It was conclusively shown at the trial that, after canvassing the ballots cast in the Second ward of ...