Spurgin v. Thompson

• Decision Date: 09 May 1893
• Citation: 37 Neb. 39,55 N.W. 297
• Parties: SPURGIN v. THOMPSON.
• Court: Nebraska Supreme Court

37 Neb. 39

55 N.W. 297

SPURGIN

v.THOMPSON.

Supreme Court of Nebraska.

May 9, 1893.

Syllabus by the Court.

1. In an election contest, the incumbent having dismissed before judgment, a paragraph of his answer alleging the improper refusal to count certain ballots cannot, by an original amendment in the district court, over the contestant's objection, set up the same matters as to which he had entered a dismissal in the county court.

2. The indorsement of the name “Eagleham,” he not being one of the election judges, upon a ballot, was within the inhibition of the statute forbidding the marking of his ballot by an elector, and vitiates said ballot.

3. While the statute requires that the cross which signifies the preference of the elector shall, in ink, be placed in a space designated for that purpose, a ballot upon which such preference is indicated by a cross made with a lead pencil, outside the space designated, but opposite the name of the choice of the elector, should be counted according to such manifest intention.

Commissioners' decision. Appeal from district court, Keya Paha county; Kinkaid, Judge.

Proceeding by Joseph M. Spurgin against Henry B. Thompson to contest an election for the office of sheriff. Determination in favor of Spurgin. Thompson appeals. Affirmed.R. M. Logan and Reese & Gilkeson, for appellant.

L. K. Alder, for appellee.

RYAN, C.

According to the original canvass of Keya Paha county, there were cast 337 votes for Hugh Booth, and 338 votes for H. B. Thompson, for sheriff of said county, and there was accordingly issued to said Thompson a certificate of election. Within the proper time, Joseph M. Spurgin, an elector of said county, as provided in such cases, filed in the county court of said county a complaint accompanied by a bond, with the view of contesting said election of sheriff. The complaint alleged irregularities as to some precincts, of which no notice will be taken, because, whatever may have been the merits of the contest, there was no evidence to show such merits. The complaint alleged that in Simpson precinct there were four ballots regularly cast, which showed clearly the choice of the voter in each case for sheriff, but that said ballots, which were cast for Hugh Booth, were by the judges of election omitted from their canvass and return. The complaint alleged that in Garfield precinct the judges of election omitted from their return of the ballots and votes two ballots which had been cast for said Hugh Booth for sheriff, upon one of which ballots the voter had placed a cross indicating his choice,--not upon the margin, however, but just opposite, and very near, the name of Hugh Booth. The other ballot was crossed in the same way as that last mentioned, except that the first-described ballot was marked with ink, the other, with a lead pencil. The complaint further set forth that in McGuire precinct one ballot was counted for Thompson, upon the back of which the voter had marked the name of “Eagleham,” and that said ballot should not have been counted for the incumbent, Thompson. The incumbent, by an amended answer, denied the averments alleged as reasons for receiving and for rejecting the ballots aforesaid, in so far as they related to the office of sheriff. There were various irregularities affirmatively alleged in said answer, but, as there was no evidence in relation to them, they will receive no attention. As there was a complication as to the seventh paragraph, it is copied in extenso. It was as follows: “(7) The incumbent, for further and other defense to contestant's complaint, alleges that at said election in Norden precinct, in said county, on the 3d day of November, 1891, the judges of election therein, while canvassing the votes and ballots of said Norden precinct, and the ballots cast therein, erred in this: That there were three ballots in the ballot box, cast at said election in said precinct, which were regular, legal, and proper ballots, and which the said judges of election rejected, and wholly omitted and rejected from their return and count of the ballots so cast at said election in said precinct, each of which said three votes were cast for the incumbent, Henry B. Thompson, for sheriff of Keya Paha county; said ballots being regular and legal and official ballots, upon two of which the voters had marked the cross in lead pencil, and the third one the voter had scratched out all the names of all the candidates except the names of the candidates for whom he intended to vote. The incumbent alleges that said three ballots, and each of them, were legal ballots, and that the same were sufficiently plain for the intention of the voter to be gathered therefrom, so far as the vote for the office of sheriff was concerned, and that the said three ballots should have been canvassed, counted, and returned as legal votes, and counted for the said Henry B. Thompson for sheriff of said county as aforesaid. The incumbent further alleges that in said Norden precinct, at said election, there were cast for said incumbent five other votes, which the judges of election refused and neglected to canvass and count for said incumbent for the office of sheriff, but did wrongfully count, canvass, and return said five ballots as having been cast for the said Hugh Booth. Incumbent alleges that said five ballots were legal and proper and official ballots, and should have been canvassed, counted, and returned for said incumbent; and incumbent asks that the court count the eight ballots herein referred to as having been cast in said Norden precinct for said incumbent, and, for the purpose of said count, incumbent asks that the ballots cast in said Norden precinct be brought in, and inspected by the court.” There was a reply in denial. During the trial in the county court the incumbent, with leave of court, dismissed paragraph 7 of his answer, above quoted, whereupon contestant, as to the same precinct, filed the following, (omitting formal parts:) “The contestant asks leave to amend his complaint herein to comply with the evidence, in this: That the evidence showed that in Norden precinct, in said county, at said election held therein on November 3, 1891, there was an error in the...