Morrison v. Pepperman
| Decision Date | 20 December 1900 |
| Citation | 84 N.W. 522,112 Iowa 471 |
| Parties | J. W. MORRISON, Contestant, Appellant, v. J. W. PEPPERMAN, Incumbent |
| Court | Iowa Supreme Court |
Appeal from Grundy District Court.--HON. A. S. BLAIR, Judge.
AT the general election in 1899 these parties were opposing candidates for the office of sheriff of Grundy county. Upon a canvass by the board of supervisors it was declared that incumbent had received 1,423 votes, and the contestant 1,422 and the incumbent was declared elected. Contestant filed a statement of contest, and the court of contest found that contestant had received 1,386 votes, and the incumbent 1,369 and the contestant was declared elected. Incumbent appealed to the district court, and upon trial had to the court it found that incumbent had received 1,399 votes, and contestant 1,395 votes, and judgment was rendered in favor of the incumbent from which contestant appeals.
Affirmed.
Reisinger & Porter, A. N. Wood, and Hemenway & Martin for appellant.
J. W Redmond and Williamson & Willoughby for appellee.
I.
Appellee raises several questions that should be first considered. Appellant states in his abstract as follows: "It was agreed by the parties that the only issues of fact involved were as to the proper counting of the ballots to which objection was made--the 134 ballots claimed by the plaintiff, Morrison, to have been cast for plaintiff, and the 135 ballots claimed by the defendant, Pepperman, to have been cast for the defendant--and that, upon the counting of these ballots and the ballots conceded to have been cast for the respective parties, the case should be determined." Appellee, in his denial of the abstract, says that such an agreement "is not shown in the official shorthand reporter's transcript or minutes." It does not follow from this qualified denial that the agreement was not made. The court might very properly have required the parties to select from the mass of ballots those in dispute. The agreement is such a one as should have been made, and, from the course of the trial, and the order of the court for the certification of "the 268 original ballots in controversy," leaves no doubt but that the agreement was made, and should be observed as to facts relating to the ballots, in the canvass thereof. Appellee also denies that the abstract shows the objections made to the ballots offered in evidence, and the specific rulings of the court thereon. We think the objections and rulings sufficiently appear. Appellee also denies that the abstract contains all the evidence, but fails to "point out as specifically as the case will permit the defects alleged to exist in the abstract," as required by section 22 of the rules of this court. We have, however, a complete transcript of the evidence before us.
II. At the close of all the evidence appellee moved for judgment in his favor "for the reason that the contestant has failed to prove any of the alleged grounds of contest, and the evidence fails to sustain the statement of contest in any one of the grounds or essentials required by law." This motion was sustained and judgment rendered accordingly. Appellee now insists that it was properly sustained, for the reason that appellant failed to prove that he was eligible to the office. Appellant alleged in his statement of contest that he was "qualified to hold said office," and this does not appear to have been disputed throughout the trial. There was nothing in the motion for judgment or in the course of the trial to call the attention of the court to any claim that appellant was ineligible to the office. If there had been, the omission would have been cured, or the appellant shown to be eligible. The question seems to be raised in this court for the first time. Appellant cites authorities to show that, the public being interested, the parties could not agree that appellant was eligible. The court was there to look after the interests of the public as well as the rights of the parties, and, had there been a suggestion that appellant was ineligible, proofs of his eligibility would have been required. These contentions are too technical to require further consideration. They are certainly not such as should defeat a through canvass of this vote as authorized by law, to the end that the will of the people, legally expressed, may be given effect.
III. Before inquiring whether the court erred in its canvass of the ballots in any of the respects complained of, we must have in mind the rules of law by which the ballots are to be counted or rejected. These rules are so specifically set forth in the statute and in former decisions of this court that nothing need be added, nor is it necessary that we extend this opinion by restating them. For those rules, see Whittam v. Zahorik, 91 Iowa 23, 59 N.W. 57; Voorhees v. Arnold, 108 Iowa 77, 78 N.W. 795; Mentzer v. Davis, 109 Iowa 528, 80 N.W. 557, Chapter 36, Laws Twenty-eight General Assembly, approved April 7, and which took effect July 4, 1900, provides as follows "That section one thousand one hundred and nineteen (1119) of the Code be amended by striking out the last sentence and inserting in lieu thereof the following: "The writing of such name without making a cross opposite thereto, or the making a cross opposite such blank without writing a name therein, or the unnecessary marking of the cross in the square below a marked circle, shall not affect the validity of this...
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