Tschetter v. Ray

• Decision Date: 14 February 1912
• Parties: JACOB TSCHETTER, Plaintiff and respondent, v. C. A. RAY, Defendant and appellant.
• Court: South Dakota Supreme Court

28 S.D. 604, 134 N.W. 796 (1912)

JACOB TSCHETTER, Plaintiff and respondent v C. A. RAY,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. Joseph W. Jones, Judge

Affirmed

A. E. Hitchcock

Attorney for appellant.

L. L. Fleeger, E. H. Wilson

Attorneys for respondent.

Opinion filed February 14, 1912

WHITING, J.

This is an election contest brought to determine who was elected mayor of the city of Bridgewater; the only issue raised by the pleadings and demanding our attention rests upon the allegation that several ballots, marked with the cross at the right of defendant's name, were wrongfully counted and canvassed for the defendant. It its conceded that, according to the count of the judges of election as canvassed by the canvassing board, it appeared that the defendant received 96 votes and the plaintiff 95, and a certificate of election was issued in accordance therewith. The trial court found that, of the 96 votes counted and canvassed as for defendant, five "were marked with a cross at the right of the name of the defendant, and had no cross or mark at the left and in front of the name of defendant, where the name of defendant appears on said ballot"; and, as a conclusion of law therefrom, the court found that the defendant received only 91 votes. Judgment entered for plaintiff, and from this judgment defendant has appealed to this court.

In appellant's brief, he pleads but two questions as covering all of the errors assigned: (1) Alleged error in the court's admitting in evidence the ballot boxes, opening the boxes, and counting ballots contained therein. (2) Alleged error in the court's conclusion that the five ballots, marked with a cross at the right of defendant's name, should not be counted for defendant.

In passing upon the first question we desire to call attention to an error in practice frequently brought to our notice by the records of this court. Counsel, in preparing findings of fact, should always bear in mind that the facts concerning which findings should be made, are those ultimate facts upon which the judgment must be based. In the case at bar, excepting such facts as were conceded, the ultimate facts sought to be shown by the plaintiff, and the facts upon which plaintiff's case must either stand or fall, were the number of ballots cast at the election and how such ballots were marked. From such facts, when determined, the court could render its conclusion as to the number of votes received by each candidate. To prove these ultimate facts the plaintiff desired to offer in evidence the ballots cast. Preliminary thereto it was incumbent upon him to lay a proper foundation for such offer by showing how the ballots had been preserved after same were cast. There was offered and received considerable evidence touching upon the ballot boxes and envelopes containing keys to such boxes, and as to how the same had been cared for, and we find that the trial court made detailed findings of fact in relation to these matters. Clearly, such findings have no proper place in the record, being merely upon matters touching the competency of the receipt in evidence of the proof of the ultimate fact. The real issues raised and determined upon the trial would often appear clearer to us if such superfluous findings were eliminated. 38 Cyc. 1970.

Appellant objected to the introduction in evidence of the ballot boxes and envelopes containing the keys. At the time the boxes and envelopes were offered, evidence had been received to show who had been in custody of the boxes and envelopes since election, and where and how the same had been cared for. The objections interposed to the receipt of these exhibits were directed almost entirely to matters that could be ascertained only by an inspection of the exhibits themselves--such as how the boxes and envelopes were sealed and condition of same. It is clear that such objections were not well taken to the receipt in evidence of the boxes and envelopes, though the condition of such exhibits might, upon examination, be such as to render the ballots inadmissible in evidence. While the...