Richmond v. Breithaupt

• Decision Date: 20 October 1923
• Docket Number: 23424
• Citation: 195 N.W. 463,110 Neb. 859
• Parties: JOHN K. RICHMOND, APPELLEE, v. ULYSSES C. BREITHAUPT, APPELLANT
• Court: Nebraska Supreme Court

195 N.W. 463

110 Neb. 859

JOHN K. RICHMOND, APPELLEE, v. ULYSSES C. BREITHAUPT, APPELLANT

No. 23424

Supreme Court of Nebraska

October 20, 1923

APPEAL from the district court for Harlan county: LEWIS H BLACKLEDGE, JUDGE. Reversed.

REVERSED.

Bernard McNeny and J. G. Thompson, for appellant.

O. E Shelburn, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, DAY and GOOD JJ., SHEPHERD, District Judge.

OPINION

LETTON, J.

This is an appeal from a judgment of the district court, on appeal from the county court, in a contested election proceeding. Contestee, Breithaupt, upon the official returns, appeared to be elected county clerk of Harlan county. The returns showed that he had received 1,524 votes, and that Richmond, the contestant, received 1,518. A certificate of election was duly issued to the contestee. It was alleged by the contestant that illegal votes were received in each of 16 townships of the county sufficient to change the result; that legal votes cast for him were rejected; that votes were erroneously counted for the contestee, and that a proper canvass would change the result and show the election of the contestant. The answer was practically a general denial, with an affirmative plea that none of the ballots except in two precincts had been sealed and preserved as required by law, and that they had been tampered with and changed. The contestant was declared elected in the district court, and contestee appeals.

At the beginning of the trial in the district court, the parties entered into a stipulation of which the following is the material portion:

"It is hereby stipulated * * * that, after the filing of the contest herein and the filing of the answer of the contestee, the following stipulation was filed by the parties hereto in the county court of Harlan county, Nebraska (omitting caption):

"The parties in the above entitled case agree that the hearing in said case commence on November 29, 1922, and that in the recount either party may take exceptions to the counting of any ballot counted or to the rejection of any ballot rejected, and when any such exception is taken that a record be made sufficient to show the facts with reference to the ballot in question and the objections thereto and said ballots be laid aside until final count is completed. It is further agreed that upon the completion of the recount in the county court of Harlan County, Nebraska, a record be made of the number of unquestioned ballots for each of the parties and of the decision as to the questioned ballots, and if the defeated party desires to appeal from the decision of the county court, said record, together with the ballots in question, the facts with relation thereto and the objections of the parties with reference to such ballots may be used as evidence on appeal. Said questioned ballots to be properly returned to the county clerk with all ballots but to be inclosed in separate marked envelopes. (Signatures.)

"That pursuant to the above stipulation the ballots of all the precincts of Harlan county, Nebraska, were counted by the county judge with the assistance of tellers agreed upon by the parties."

Contestant then offered testimony of the county judge as to the result of the recount of the ballots of Sappa township. Objection was made to this testimony as incompetent, but the witness was permitted to testify. One of the men who had acted as teller in the county court was handed a tally sheet of the recount which he had kept and had delivered to the county judge. When asked whether it was a correct statement of the result of the recount, the contestee made the objection that the evidence was incompetent and no foundation laid, and renewed this objection to every question as to the result of the recount, and to the offer of the tally sheet. These objections were all overruled. The envelope containing 25 rejected and questioned ballots was then offered in evidence with the ballots it contained, to which offer the same objection was made. The county judge also testified, over objection, as to which of these ballots were accepted and counted, and for whom, and which were rejected, stating also from which township the ballots came.

The evidence in the county court was not preserved as a part of the record by a bill of exceptions. The ballots, except the 25 mentioned, were not produced at the trial; the contestant insisting that by the terms of the foregoing stipulation he was relieved from the necessity of adducing them as evidence.

In a contest of an election, in which a recount of the ballots is necessary, the original ballots should be brought into court and should be produced in the same condition and in the same receptacles as returned by the election officials, unless otherwise agreed to by the parties...