State ex rel. Hallam v. LaLly

• Decision Date: 08 January 1908
• Citation: 114 N.W. 447,134 Wis. 253
• Parties: STATE EX REL. HALLAM v. LALLY.
• Court: Wisconsin Supreme Court

134 Wis. 253

114 N.W. 447

STATE EX REL. HALLAM

v.LALLY.

Supreme Court of Wisconsin.

Jan. 8, 1908.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Quo warranto by the state, on the relation of William R. Hallam, against Anthony Lally. Judgment for relator, and defendant appeals. Affirmed.

Quo warranto action involving the right to the office of alderman of the Tenth Ward of the city of Superior. The relator by the official canvass was defeated by a small majority of the votes cast, given to the defendant. The former duly qualified and entered upon the duties of the office. The cause was tried by the court resulting in a decision that the relator was elected by one majority of the legal votes cast. The decision turned on the question of whether the vote of Frank Allman and that of Paul Peck, given as was found for the defendant, were legal. At the close of the evidence a motion was made on behalf of the defendant, supported by his affidavit, for an adjournment of the court for one week to enable him to obtain the attendance of one Norton as a witness, it being claimed that he would testify that Allman resided for several years in the state of Wisconsin and for more than 30 days in the Tenth Ward of the city of Superior before April 1, 1906. The affidavit stated that appellant had used due diligence to secure Norton's attendance at the trial, but that he did not know his whereabouts until after the trial began and that he knew of no other witness by whom he could prove the facts he could prove by Norton. It did not inform the court of the nature and kind of diligence used to obtain the attendance of the witness, nor what efforts had been made to obtain evidence in respect to the matter it was supposed Norton would testify to. As the case stood the proof as to Allman's residence and for whom he voted rested largely on the testimony of one Ely, and particularly on his evidence of what Allman said to him respecting the person for whom he voted. The motion for a continuance was denied upon the ground that it did not appear appellant had made any preparation for the trial, or that if the testimony of Norton of the character indicated in the affidavit were before the court, it would change the result. Judgment of ouster was rendered as prayed for.George C. Cooper, for appellant.

E. F. McCausland and C. H. Crownhart, for respondent.

MARSHALL, J. (after stating the facts as above).

The motion for a continuance was addressed to the sound discretion of the court. There are no satisfactory indications that such discretion was abused. The motion was properly denied because the affidavit did not inform the court as to what efforts had been made to obtain the attendance of Norton or what efforts had been made to prepare for trial in respect to the point in relation to which his testimony was desired. On the contrary, as the court held, it appeared that appellant had not made any preparation whatever to meet the case which the complaint advised him would be presented.

It is contended that the trial court erred in finding that Allman was not a legal voter because it was grounded wholly, or in the main, on the testimony of Ely as to what Allman told him and that such testimony though proper under the decisions of this court (State ex rel. Hopkins v. Olin, 23 Wis. 309;State ex rel. Bell v. Conness, 106 Wis. 425, 82 N. W. 288;State ex rel. Leonard v. Rosenthal, 123 Wis. 442, 102 N. W. 49), standing alone was not sufficient to overcome the presumption that he was a legal voter, arising from the fact that he voted at the election.

We are not prepared to say, as a matter of law, that testimony of the character referred to would not, even standing alone, be sufficient to overcome such presumption. True, it is a kind which in many, and perhaps most, jurisdictions, is rejected and as said in State ex rel. Bell v. Conness, supra, there is no absolute right to its reception. The court may receive or reject it according to circumstances, and “care must...