McIntosh v. Livingston

41 Iowa 219 | Iowa | 1875

Cole, J. —

i aat . tested elec1-'‘ tionThe first question made here is upon the sufficiency of the notice of appeal from the judgment of the court of contest to the Circuit Court. The statxxte (Code, Sec. 716), provides that the party against whom judgment is rendered by the court of contest may appeal within twenty days to the Circuit Court, but does not prescribe how the notice of appeal shall be served. In this case it appears that verbal notice of appeal was given and entered of record by the court of contest before it adjourned; and, acting upon such notice, the parties made an agreement as to the custody of the ballot-box and ballots pending the appeals Without determining whether a written notice might not be necessary in an ordinary case, it seems to us that the giving of this notice by Livingston and the recognition of it, and the agreement upon it by McIntosh, operated as a waiver of any further notice. By analogy, also, to the regulations for appeals from justices of the peace (see Code, Sec. 3588),’such a notice as given in this case would be sufficient. The sections of the Code referred to by -counsel for appellant, as requiring notice to be in writing, expressly require that such notice shall be in writing (see Code, Secs. 469. 1254, 1831, 3178). By the statute providing for appeals from a court of contest, it is not specified that the notice thereof shall be in writing. There was no error, therefore, in •refusing to dismiss the appeal.

2. evidence : presumption: election. I. The appellant in this court, upon the trial of the contest before the Circuit Court, introduced certain witnesses and asked if mistakes as to other candidates voted for , . ,. . . . at the same election were not also found m the count. Upon objection tbe court excluded this, for tbe reason that it was immaterial. A mistake as to one candidate would furnish no ground for supposing a mistake as to another. Bryan v. Berkley, Littell’s Sel. Cases, 91; Thornberry v. Cheverhill, 4 Monroe (Ky.), 732.

3.-: opinness feiection. III. The appellant here also aske'd another witness, who testified as to the condition of the ballot-box when it was delivered to the custodian, and also from the time of the canvass by the judges and clerks of the precinct, and after he had testified fully respecting the condition of the ballots and the box, he was asked his opinion as to whether the box had been interfered with and to this question the court sustained an objection and excluded the answer. This exclusion is assigned as error.

While it would not have been error to have admitted the answer, yet since all the facts upon which the opinion of the witness must have been grounded were given to the court who tried the question of fact, we could not interfere with his judgment, simply because he had refused to hear the opinion of the witness.

IY. The ballot-box had been kept in a room more or less frequented and sometimes left open or unlocked, and another witness introduced by appellant was asked whether or not the town books and mayor’s records were kept in the same room with this box. This was objected to as immaterial, and thereon excluded. There was no error in its exclusion, for the question was as* to the care taken of this box and not that of any other.

4. verdict : court.6 °f Y. The main point relied on for reversal, however, is that the finding of the court was not warranted by the testimony. It may not be improper to say that, as an original question, probably no member of this court would have found the fact as it was found by the court below; and yet, that there was evidence upon which that finding may rest, cannot be well disputed. The testimony of the judges and clerks of election who made the original count upon which the contest was made, is very direct as to the correctness of such count; and although the evidence does not show definitely or certainly that the ballot-box containing the ballots was actually interfered with and the ballots changed, yet it does show abundant opportunity for such change.

Again, the claim of this appellant was that a mistake of just sixty ballots was made in the count. The ballots themselves show that the mistake was surely not that, but some other number.

But no material advantage is gained by discussing this question of evidence. We dispose of the case upon the general principle so often heretofore announced, that where there is a conflict of evidence, and the court has found for the one party or the other upon that conflicting evidence, this court will not interfere.

Aeeirmed.