Stevens v. Coleman
| Decision Date | 01 November 1949 |
| Citation | 224 S.W.2d 149,311 Ky. 313 |
| Parties | STEVENS et al. v. COLEMAN. |
| Court | Kentucky Court of Appeals |
Evelyn Jarvis filed a petition, opposed by Harold Coleman requesting a recount of ballots for the Republican nomination for county court clerk of Carter County.
The Circuit Court for Carter County, A. W. Mann, Special Judge directed W. E. Stevens and others, as election commissioners to issue to the party Coleman a certificate of nomination and petitioner appealed.
The Court of Appeals, Helm, J., refused to dismiss the appeal, affirmed the judgment and held that the statutory provision relating to signature of ballots by one election judge before delivery to the voters is mandatory, but that an election judge may delegate to another officer the signing of his name on the ballots.
Thomas D. Theobald, Jr., Grayson, Hubert Counts, Olive Hill, for appellant.
H. R. Wilhoit, Grayson, for appellee.
Appellant, Evelyn Jarvis, and appellee, Harold Coleman, were candidates for the Republican nomination for County Court Clerk of Carter County. The tabulation of the election commissioners--W. E. Stevens, T. H. Holbrook, and G. H. Templeton--named as appellants here, showed 1659 votes for appellee, Coleman, and 1659 votes for appellant, Jarvis.
Appellee filed a 'petition requesting recount of ballots.' The regular judge having disqualified, by agreement of the parties Honorable A. W. Mann was selected as special judge. Upon the recount, Judge Mann found 'and adjudged * * * that the plaintiff, Harold Coleman, received a majority of nine votes over the defendant, Evelyn Jarvis, and that he is entitled to the nomination by the Republican party for the office of County Court Clerk of Carter County.' The election commissioners were directed to reassemble and issue to Coleman a certificate of nomination. Mrs. Jarvis, appellant, prosecutes this appeal.
Appellee moves to dismiss the appeal because: (1) The statement of appeal does not designate the date on which the judgment was rendered; (2) appellant has failed to file in this court any sufficient supersedeas bond; and (3) the election commissioners are not proper parties here.
The statement of appeals shows: The election commissioners are not necessary or proper parties here, but Evelyn Jarvis, the appellant, is named in the caption of the statement of appeal as an appellant. While the commissioners should not have been named as appellants, the fact that they were is not ground for dismissing the appeal.
The date of the judgment is not set out in the statement of appeal, but by turning to Page 22 of the record, we find the judgment of the trial court and that it was entered on September 1, 1949. The record was filed here September 9, and within ten days, as provided by KRS 122.060. We are not disposed to hold this a fatal error, but counsel should acquaint themselves with the provisions of Civil Code of Practice, section 739, and section 1.120, Rules of the Court of Appeals.
On Page 25 of the transcript of record, we find a supersedeas bond filed by appellant, with R. T. Burchett as surety, providing that appellant will pay to appellee all costs and damages that may be adjudged against the appellant on the appeal. This copy of the bond is duly certified as part of the transcript of record by the Clerk of the Carter Circuit Court. Bonds are usually entered in a permanent, bound book. That appears to have been done in this case by the Clerk of the Carter Circuit Court. This procedure seems to be in substantial compliance with KRS 122.060(2).
Eighteen ballots have been brought with the record to this court. We have examined these ballots carefully. They appear to have been correctly counted by the trial judge. From the record, it seems that all of the ballots counted had the names of the precinct judges signed on the back of the ballots. However, on a number of the ballots in several of the precincts, the name of the judge appears to have been signed in his presence by one of the other election officers at his direction. If the voters of such ballots are disfranchised and their ballots not counted, appellant would have a majority of the votes.
The special judge, in a written opinion, said: '* * * the court feels that he should hold that the ballots cast in this race * * * and signed for the judge by the clerk or other officer in his presence, and at his direction * * * and in * * * absence of any testimony to show any lack of good faith I feel * * * I should hold that those ballots were properly signed and that Mr. Coleman has received the nomination. * * * if the Legislature intended to make it strictly mandatory * * * that the judge at the election should sign his own name in...
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McDunn v. Williams, 74613
...592, 165 S.E.2d 822 (uninitialled ballots could not be counted even where no allegations of fraud existed); Stevens v. Coleman (1949), 311 Ky. 313, 224 S.W.2d 149; Hammond v. Love (1946), 187 Md. 138, 49 A.2d 75; Swan v. Bowker (1938), 135 Neb. 405, 281 N.W. 891 (uninitialled ballots not to......
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