Seaton v. Swem

• Decision Date: 05 April 1882
• Citation: 11 N.W. 726,58 Iowa 41
• Parties: SEATON v. SWEM
• Court: Iowa Supreme Court

11 N.W. 726

58 Iowa 41

SEATON v. SWEM

Supreme Court of Iowa, Des Moines

April 5, 1882

Appeal from Linn Circuit Court.

AT the regular election held in November, 1880, the appellant Seaton, and the appellee Swem, were candidates for the office of sheriff of Linn county, The board of supervisors, at their regular meeting as a board of canvassers, canvassed the returns from the election precincts in said county, and declared the appellee, Swem, elected sheriff of Linn county. The appellant contested the election of Swem. The court for the trial of this contested election, consisting of Daniel Travis, chairman of the board of supervisors, and J. S Anderson, Esq., chosen by Swem, and C. W. Kepler, Esq. chosen by Seaton, on December 9, 1880, pronounced judgment that the contestant, B. F. Seaton, had been duly elected sheriff of Linn county. From this judgment Swem appealed to the Circuit Court of Linn county. The cause in said Circuit Court was tried to a jury, and a verdict was returned that the incumbent, Swem, was duly elected sheriff. The appellant filed a motion for a new trial, based upon the alleged misconduct of certain of the jury, and of one Reip, the bailiff, who had the jury in charge. The court overruled the motion and entered judgment that the incumbent, Swem, was duly elected to the office of sheriff and is entitled to the possession of the same. The court also entered judgment against the contestant for the costs, taxed at $ 265.60. The contestant appeals.

REVERSED.

Blake & Hormel, for appellant.

Mills & Keeler and Rickel & Eastman, for appellee.

OPINION

DAY, J.

The appellant, in support of his motion for a new trial, filed the affidavit of one Frank Haynes, that he had money bet upon the result of the election of sheriff, with one A. Caldwell who served as a juryman in the trial of the cause, Caldwell betting that Edward L. Swem would be elected sheriff of Linn county, and Haynes betting to the contrary, and that the money so bet, and put up on the election, was subject to be paid on the decision of this cause. The affidavit of one G. A. Patterson was also filed, that on the 18th day of January, 1881, said A. Caldwell stated in the presence of affiant that it would be money in his (said Caldwell's) pocket to have Edward L. Swem declared elected sheriff of Linn county, and seated as said sheriff; that said Caldwell and said Edward L. Swem held a private conversation before Caldwell was summoned as a juryman in this cause; that almost immediately after said consultation, which took place at Park Place Hotel, Caldwell started for the court house, and immediately after reaching the court house he was chosen from among the bystanders as a juryman in the case. The affidavit of Frank Winson was filed, that on or about January 17, 1881, Caldwell stated in his presence and to him, that it would be money in his pocket to have Edward L. Swem elected sheriff. The plaintiff filed his affidavit stating that he never knew or heard of the facts set forth in the foregoing affidavits, until after the return of the verdict. The attorneys of plaintiff also filed their affidavit, stating that they never knew or heard of the facts stated in the foregoing affidavits, until after the return of the verdict, and that A. Caldwell, before being impaneled or received as a juror to try the cause, was sworn and examined as to his qualifications as a juror, and asked if he had ever formed or expressed any opinion as to the merits of the cause, or was in any manner interested in the action.

The appellee caused to be filed the affidavit of A. Caldwell, as follows: "That prior to or during the trial of said cause I never had any conversation, whatever, with E. L. Swem, or with either of his attorneys in regard to said suit or the matters involved therein, at the Park Plack Hotel, or any other place whatever; that I never spoke to said Swem about said matters in controversy at any time or place, prior to the decision of said cause, nor did he ever talk with me about the same, or about being a juror in said cause; that prior to the general election of November 2, 1880, I did make a bet of twenty-five cents with Frank Haynes that Swem would be elected sheriff; that said bet was made only at the...