Reagan v. McBroom

• Decision Date: 30 April 1932
• Citation: 51 S.W.2d 995,164 Tenn. 476
• Parties: REAGAN v. McBROOM.
• Court: Tennessee Supreme Court

51 S.W.2d 995

164 Tenn. 476

REAGAN v. McBROOM.

Supreme Court of Tennessee.

April 30, 1932

Error to Circuit Court, Fentress County; H. B. Brown, Judge.

Election contest by J. G. Reagan against C. K. McBroom. Judgment for contestant, and the contestee brings error.

Affirmed.

H. M Carr, of Harriman, and Will R. Storie, of Jamestown, for plaintiff in error.

J. T Wheeler and H. N. Wright, both of Jamestown, and A. H Roberts, of Nashville, for defendant in error.

SWIGGART J.

The parties above styled were candidates for the office of circuit court clerk of Fentress county at the August election, 1930. Certificate of election was issued to McBroom and he was inducted into office. The present action was commenced by Reagan by petition filed August 14, 1930, asserting his own election by a plurality of all the votes cast, and praying judgment that he was entitled to the certificate of election and entitled to the office.

A demurrer to the petition was sustained by the circuit court, after an amendment had been filed, and this action of the circuit court was reversed on appeal to this court. Procedendo from this court on the remand was made of record in the circuit court on June 18, 1931.

At the term of the circuit court next succeeding the remand of the case, the petitioner was permitted to amend his petition so as to add an additional ground of contest, relating to the second voting precinct of the First civil district of the county. Prior to this amendment the contest had been grounded solely on the election held in the Fifteenth civil district of the county.

The case was heard by the circuit judge at the August term, 1931, of the circuit court, and judgment was entered sustaining the petitioner's right to the office. Motion for a new trial was made and overruled, and the defendant was granted an appeal to this court.

For answer to the petition, as amended, the defendant denied the truth of the grounds of contest, and asserted that illegal votes were received in the Thirteenth voting precinct of the Third district of the county, to such extent as to offset the matters relied upon by petitioner. The answer also averred that in the Sixth voting precinct the defendant received three more votes than were counted for him.

The two grounds of contest, as to which evidence was offered, were sustained by the circuit judge. In the Fifteenth precinct the returns, as canvassed by the board of election commissioners, gave McBroom 69 votes. On the tally sheets of the pollbooks for this district the digit 6 in the figures 69 appeared to have been written over an erasure, and witnesses testified that when this book left the hands of the election officers the number representing the total vote of McBroom was 59. The circuit judge accredited this evidence, with the result that McBroom's total in the Fifteenth district was reduced by 10 votes.

The verity of the returns shown on the pollbook for the Fifteenth district was also impeached, in addition to the erasures referred to, by the fact that the total votes counted for the several candidates for the office of circuit court clerk exceeded the total number of persons voting, as shown by the poll list. The number of votes was 109, while the number of voters was 105.

The returns for the second precinct gave McBroom 36 votes. The digit 6 in this total was written over an erasure, and the total number of votes counted for the candidates for the office of circuit court clerk exceeded the number of voters listed by 1. Witnesses testified that when the returns left the hands of the election officers the returns for this district gave McBroom only 32 votes. On this evidence the circuit court reduced the number of votes for McBroom by 4.

The aggregate number of votes counted for McBroom by the board of election commissioners, as shown by the returns from all precincts, was 606. The aggregate number of votes shown by the returns as canvassed for Reagan was 596. Deducting the 14 votes found to have been fraudulently added to the returns for McBroom, the judgment of the circuit court reduced McBroom's total to 592, with the result that the petitioner, Reagan, was adjudged to have received a plurality over McBroom of 4 votes.

The proof shows that the original election returns from the Fifteenth civil district and from the Second precinct were delivered by the election officers to one of the members of the county board of election commissioners on the evening of the day of the election. This member of the board testified that he placed the returns in the drawer of a filing case which was automatically locked when another drawer of the case was locked, and that this latter drawer was locked by him. He further testified, however, that he was out of his office throughout the day following the day of the election; that two other persons had keys to the case; that it was possible that the drawer in which the returns were placed was not locked; and that he could not say that the returns were not changed during the time they were in his office.

The defendant offered no evidence to rebut the testimony of petitioner's witnesses as to the total vote originally entered on the returns for the two precincts. He offered no evidence to sustain the averments of his answer as to fraudulent voters in the Thirteenth district. He did offer the original ballots, for recount, but they were excluded and the packages in which they were contained were not opened.

As the case was submitted to the circuit judge, material and competent evidence had been introduced to establish the contention of the petitioner that the returns canvassed by the board of election commissioners were fraudulently altered so as to give McBroom 14 votes which had not been cast for him. The judgment of the circuit court finding this to be true is not contradicted by any material evidence considered by him; and unless reversible error is found in the procedure, the petitioner is conclusively entitled to an affirmance of the judgment.

The trial of this case was begun in the circuit court on August 21st. On August 19th, counsel for petitioner procured an order from the circuit judge, at chambers, permitting them to take the deposition of Hon. Ward Case, one of the county election commissioners, upon giving the defendant one hour's notice of the time and place. This order was made upon an affidavit that Mr. Case was about to leave the county to fill a professional engagement as counsel in another court and could not be present on the following day, which had been set for the trial. Pursuant to this order, the deposition of Mr. Case was taken on the same afternoon, and was used as evidence for the plaintiff.

Before the trial was taken up, exceptions were filed to this deposition, and assignments of error attack its competency, both for formal defects and for an alleged lack of authority and power in the circuit judge to make the order. It is our opinion that these assignments of error are not material to this appeal. The case was heard by the circuit judge without a jury, which is the proper practice in such cases. Shields v. McMahan, 112 Tenn. 1, 81 S.W. 597. The appeal is in the nature of a writ of error, and the finding of the trial judge is conclusive on the facts, if sustained by any material evidence. Brown v. Hows, 163 Tenn. 138, 40 S.W.2d 1017. If the deposition of Mr. Case was incompetent and if it should have been excluded, the defendant would not be entitled to a remand and to a new hearing in the circuit court, but it would become our duty to review the facts without regard to the incompetent deposition. The practice is well settled on this point. Smith v. Hubbard, 85 Tenn. 306, 2 S.W. 569, 571; Montague v. Thomason, 91 Tenn. 168, 176, 18 S.W. 264; Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698; Southern Railway Co. v. Bickley, 119 Tenn. 528, 107 S.W. 680, 14 L. R. A. (N. S.) 859, 123 Am. St. Rep. 754, 14 Ann. Cas. 910; Kittel v. Steger, 121 Tenn. 400, 117 S.W. 500.

In Smith v. Hubbard, supra, the rule is stated: "The effect of material incompetent evidence must be treated as affecting the conclusion of the circuit judge upon the facts, just as it would that of a jury. In the latter case, the cause is remanded for a new trial, while in the former the finding of fact is stripped of the high degree of presumption attached to it otherwise, and this court will try the cause as he originally tried it, and render such judgment as he ought to have rendered."

The testimony given by Mr. Case was to the effect that the disputed numbers on the original election returns showed evidence of erasures. He also filed as an exhibit to his testimony a tabulation of the total vote counted for each of the candidates at each of the precincts, and testified that this tabulation correctly showed the totals as canvassed by the board of election commissioners, with 606 votes for McBroom and 596 votes for Reagan.

The testimony of Mr. Case with regard to the erasures contributed nothing to the evidence, since the original returns were themselves introduced in evidence as exhibits to the testimony of the assistant to the secretary of state, the lawful custodian of these records.

It is strongly insisted on the briefs for the plaintiff in error that the deposition of Mr. Case contains the only evidence of the total vote allowed by the board to the two contesting candidates. This contention is not supported on the record. Mr. Reagan testified that he was present when the votes were canvassed; that McBroom was credited with 69 votes in the Fifteenth district, 36 votes in the Second precinct, and 606 votes as his total. He also testified that the board credited him with a total of 596 votes.

Sergeant Alvin C. York, one of the board of election...