Spurrier v. McLennan
| Citation | 88 N.W. 1062,115 Iowa 461 |
| Parties | JOHN E. SPURRIER, Appellant, v. ALEX. MCLENNAN |
| Decision Date | 30 January 1902 |
| Court | Iowa Supreme Court |
Appeal from Iowa District Court.--HON. M. J. WADE, Judge.
THIS is a contest over the right to hold the office of clerk of the district court in and for Iowa county, each party claiming to have been elected thereto. The board of supervisors declared defendant to have been elected. In a proceeding before a court of contest, plaintiff's case was dismissed. On his appeal to the district court, trial was had on the merits and defendant was found to have been elected by a majority of five votes. From such finding this appeal is taken.
Affirmed.
J. T Beem and Thomas Stapleton for appellant.
Hedges & Rumple for appellee.
Defendant 's motion to dismiss plaintiff's appeal for want of jurisdiction in the court of contest, and also in the district court, will be overruled. In view of the conclusion reached on the merits of the case, we need not take the time or space necessary to set out our reasons for this action. Defendant also took an appeal from the finding of the district court on two grounds: (1) As to its holding that it had jurisdiction; (2) as to rulings on the reception and rejection of certain ballots. There is a motion to dismiss this cross appeal. What we have already said indicates that such appeal is not sustainable on the first ground. As to the second ground, it is admitted by contestant, that all such rulings may be considered on plaintiff's appeal. Inasmuch as defendant's abstract may properly be taken and accepted by us as an amendment to that of appellant, it makes no difference whether we consider the matters on one appeal or another, so long as we may consider them at all. We might therefore pass the motion without a ruling. But we think it is not well taken. The judgment of the trial court fixed the number of votes defendant had received. If not satisfied with this holding he could appeal from it, and his appeal would, of course, bring up all rulings which affected this total. We do not understand that on an appeal this court tries a case of this kind de novo; but, rather, that we consider only the errors assigned by the appellant.
I. It is claimed that one Nettifee, who voted at the election, was not a qualified voter, for that he was not a citizen of Iowa at the time. He was asked by counsel for contestant for whom he voted for clerk of the district court, and, upon objection, the trial court ruled that he need not answer, a sufficient foundation not having been laid. All that has been shown was that Nettifee had previously gone to Oklahoma, with the intention of looking at the country, as a possible place of residence; that he liked it, and had determined some time in the future to remove there. This did not make him a citizen of Oklahoma, nor lose him his rights as a citizen of Iowa.
II. There was a motion by contestant to strike the testimony of D. O. Jones, one of the election judges, on the ground that it was hearsay. This was overruled, and complaint is made of this action of the court. The witness was explaining marks on certain ballots, and attempting to show they were made by the judges of election in counting the same. Whatever may be said as to certain parts of his evidence, his statement with relation to exhibit 69,--"I am pretty positive those marks were not on there before they [the ballots] were taken from the box."--followed by his assertion as to exhibit 68,--"it was the same as the others,"--was not hearsay; and as the motion went to all of his testimony, it was properly overruled.
III. Upon the ballot sheet appeared tickets of the Prohibition and Socialist Labor parties. Neither of these contained county tickets. Several of these tickets were marked in the circle and a mark also placed in the square opposite the name of incumbent on the Republican ticket. These ballots were counted for the incumbent, and this action of the canvassing board was sustained by the district court. Section 1120 of the Code is in part as follows: This section, we think, makes the cross in the circle effective as a vote for all names printed upon the ticket below it, but for nothing more. Such a cross cannot indicate a vote for an office that is left blank upon that ticket. If these tickets had contained the name of the nominee for the office of clerk of the district court, and the voters, after marking the circle, had put a cross in the square preceding the name of incumbent on the Republican ticket, they would have voted for two candidates for an...
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