Mentzer v. Davis

• Decision Date: 24 October 1899
• Citation: 80 N.W. 557,109 Iowa 528
• Parties: MENTZER v. DAVIS.
• Court: Iowa Supreme Court

109 Iowa 528

80 N.W. 557

MENTZER

v.DAVIS.

Supreme Court of Iowa.

Oct. 24, 1899.

Appeal from district court, Marion county; A. W. Wilkinson, Judge.

This is a contest over the right to hold the office of sheriff of Marion county. The board of supervisors, acting as a canvassing board, found that the incumbent had a plurality of one vote over the contestant. Contestant appealed, and the court of contest authorized by statute found that he (contestant) was elected. Incumbent served notice of appeal to the district court, but gave no bond. The district court, after hearing all the evidence, directed a verdict for contestant, and incumbent appeals. Affirmed.Hays & Amos, for appellant.

Henderson & Berry and Kinkead, Mentzer & Granger, for appellee.

DEEMER, J.

Appellee says we have no jurisdiction of the case (1) because no proper notice of appeal was given from the decision of the court of contest; (2) because incumbent gave no bond after serving his notice of appeal; and (3) because incumbent consented to and requested the finding made by the court of contest.

In support of the first point, he says the notice of appeal was served before the decision of the court of contest was announced. There is no doubt that the notice was served before any formal entry of judgment was made by the court. But we think the trial court was justified in finding that the judges had in fact announced their decision before the notice was served. All that was done after that time was to reduce that decision to writing and file it with the proper authorities. In other words, the decision had been made before the appeal was taken, but the written evidence of that decision had not been made. The appeal was not prematurely taken. McIntosh v. Livingston, 41 Iowa, 219; Freem. Judgm. § 38; Genella v. Relyea, 32 Cal. 159; Kehoe v. Blethen, 10 Nev. 445.

We do not think there is such evidence of consent to the judgment rendered by the court of contest as to justify us in holding that the incumbent was not aggrieved by the finding.

Regarding the failure to give bond, the statute does not, in express terms, require it; and, as no stay of proceedings is sought, we see no reason for holding that one should be given. Robertson v. Coal Co., 27 Iowa, 245; Bremer County Bank v. Bremer Co., 42 Iowa, 397. Indeed, the statute (Code, § 1222) clearly indicates that a bond is not required, unless stay of execution is sought.

2. On the merits of the case, it is contended that the court was in error in admitting the ballots cast at the election in evidence, and in refusing to submit certain special interrogatories to the jury. Virtually, there is but one question for solution, and that is, were the ballots so preserved, after they were deposited by the electors, as that the court was justified in admitting them in evidence? The rule as to the preservation and care of ballots cast by the electors is well understood. Quoting from McCrary, Elect. p. 349, we said in Davenport v. Olerich, 104 Iowa, 196, 73 N. W. 603: “Before the ballots should be allowed in evidence to overturn the official count and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law; that they have not been exposed to the public or handled by unauthorized persons; and that no opportunity has been given for tampering with them,”--citing a number of cases. We further said in that case “that the onus is on him who would discredit the official count, before resorting to the ballots as the best evidence of who has been elected to show that these have been preserved with that care which precludes the suspicion of having been tampered with and the opportunity of alteration or change.” Of course, this does not mean that they must be proven genuine beyond all suspicion, however groundless, nor that there was no possibility that they might have been tampered with. To adopt such a rule, would be to exclude the ballots entirely; for we can hardly imagine a case where they might not be tampered with. No safe is so secure as that it may not be unlocked, and no vault so perfect that it may not be entered. What is meant is that they shall not be so exposed to the reach of unauthorized persons as to afford a reasonable possibility of their having been changed or tampered with.

The statutory requirements as to the preservation of ballots after they have been cast and counted by the judges of election are fully set out in the Davenport Case, and need not be repeated. With one exception, the ballots in this case were returned to the county auditor within 24 hours after the polls closed. Those cast in what is known as “Bussey Precinct” were not returned until the second day after the election. The ballots were folded, strung on wire, sealed, and placed in sacks. The sacks were then sealed, and placed in boxes, and in this condition were delivered to the county auditor. These boxes were placed in the auditor's vault in the court house, where they remained until placed in an...