Nordloh v. Packard

• Decision Date: 03 May 1909
• Parties: NORDLOH v. PACKARD.
• Court: Colorado Supreme Court

101 P. 787

45 Colo. 515

NORDLOH v. PACKARD.

Supreme Court of Colorado

May 3, 1909

Appeal from Adams County Court; A. H. Gutheil, Judge.

Election contest by Albert H. Packard against Henry Nordloh. Judgment for contestor, and contestee appeals. Reversed and remanded.

Geo. Allan Smith and B. E. Woodward, for appellant.

Harrie M. Humphreys and James H. Brown, for appellee.

CAMPBELL J.

At the general election in November, 1908, Henry Nordloh and Albert H. Packard were opposing candidates for election to the office of county commissioner of Adams county. The count of the official returns of the election officers made by the county canvassing board gave Nordloh 182 majority, and thereupon the certificate of election was issued and delivered to him. Packard, being dissatisfied, instituted this contest in the county court against Nordloh, and in the written statement which our special statute requires alleged in legal effect, that if the election had been honestly conducted and the votes fairly counted, as they were not, the majority would have been in his favor; but, because of various mistakes made and frauds perpetrated by the election officers and others in conducting the election and counting the vote, he was wrongfully deprived of his majority and the certificate given to Nordloh. Nordloh filed his answer December 14, 1908, and, after denying the material allegations of the statement, and averring that the election was honestly conducted and the vote correctly counted, alleged that in case the court in hearing the contest should open the ballot boxes and count the ballots as contestor had requested, and such count showed a majority in the latter's favor, that result would be due to fraudulent and criminal conduct by persons working in the interests of contestor, who, after the election officers delivered the ballot boxes to the county clerk, their legal custodian, and before the judicial count, if any, was made tampered with and changed the ballots as cast and first counted to correspond with the allegations of contestor's written statement. After this answer and the replication thereto were filed and the issues made up, counsel for contestee on December 17th served notice on counsel for contestor that he would make application to the court, and support it with affidavits, to call in another judge to try the case upon the ground that the presiding judge was prejudiced against contestee. On the day set for its hearing and in the presence of counsel for contestor, contestee's counsel called the attention of the court to this proposed application, and, as we infer, because of the natural delicacy counsel have in such matters, indicated that he would rather orally suggest the disqualification to the court than formally to file a motion, and added, if the court chose not to act upon the suggestion, the application would be presented in the regular way. Upon an intimation by the court that it would not be necessary to make a formal application, and that he certainly would endeavor to get another judge to try the case, but that, if it could not be done, contestee would be advised so that the formal application could be filed as of that date, contestee withheld the application from the files. Six days later, and on December 23d, counsel for contestee again called the court's attention to this matter, apparently supposing that final disposition of it had not been made, whereupon the court said that the order for calling in another judge had already been made. After some further conversation between the judge and contestee's counsel, with reference to statements in the supporting affidavits, the truthfulness of which the judge then denied, and upon objection interposed by contestor's counsel to any further discussion or hearing unless the papers were formally filed, the court permitted contestee to file, and he did file, them as of the time when the suggestion concerning the same was first made. The court ended the interview by saying that he would endeavor to get another judge, and was doing so as fast as he could, and hoped to succeed in such endeavor upon the following day. Thereafter and upon the day set for trial, December 29th, counsel for both parties appeared, and the judge remarked that he had made arrangements with an outside judge to be present and try the case, and had supposed that the latter would be present for that purpose, but that only that morning, while counsel were present in court awaiting convening of the court, he had received a message by long-distance telephone from the outside judge that he could not come. The presiding judge then stated that, since he had failed in his effort to have counsel agree on allowing the contest to go over until his successor took office, there was nothing else for the court to do but to try the contest, and he immediately called the case for trial and ordered counsel to proceed, to all of which contestee duly objected. The trial was begun and evidence heard, and the court, deeming the showing of contestor sufficient therefor, ordered the ballot boxes to be opened and proceeded to count the ballots, which were taken from the boxes for that purpose, with the result that instead of a majority of 182 for Nordloh, which the official count by the canvassing board showed, Packard's majority was shown to be 252. The court awarded judgment, canceling contestee's certificate of election, declaring contestor elected, and granting to...