138 Ky. 605 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
The parties to this appeal were opposing candidates for the office of sheriff in Magoffin county at the November election, 1909. The result of the election, as certified by the election officers and the county board of election commissioners, was favorable to appellee, his majority being 146, and the certificate of election was issued to him. Appellant filed a petition in equity in the circuit court contesting appellee’s right to the certificate. He set forth many alleged reasons why the certificate was improperly issued to appellee, and alleged that he was entitled to the of
Counsel for appellant concede that he failed to sustain bis contest upon the alleged reasons contained in the first, second, third, and fourth grounds of contest) and that, while it was shown by the testimony that some illegal votes were cast for appellee, the testimony shows that an equal number of like votes were cast for appellant. Appellant relies mainly upon the alleged illegal vote of the Trace Fork and Blooming-
The election in Trace Fork precinct was held in a log house which had been used as a residence, and
The testimony shows that neither of them intended any wrong; that it was their intention only to accommodate the voters who had called upon them. Their doing- so was error, however, and the votes of those five persons should not have been counted. Their names, however, are not given, nor does it appear for whom they voted. The officers committed a misdemeanor for which, possibly, they could have
Appellant further contends that the court erred to his prejudice in not opening the ballot boxes and recounting the ballots upon his motion. Appellant had the county court clerk, Mr. Lacy, to carry the ballot boxes into court during the trial and moved the court to open them. The boxes were constructed of wood and seemed to be intact. Appellant proved by the clerk that he had kept them in the vault of his office; that the vault had been kept locked since he came into office, the first Monday in January, 1910; and that no one had had access to them since he took charge of ■the office, so far as he knew. On cross-examination the clerk, who was sustained by one of his deputies, stated that several months prior to his induction into office the lock on the vault door was out of fix and could not be used; that the door to the clerk’s office was repeatedly left unfastened; that there was a transom over the door large enough for a person to enter. The jailer testified that he had a key to the clerk’s office which he carried on a ring with several other keys; that some weeks prior to the trial of the case the key was in some way taken off the ring, and he had not seen it since. The clerk also testified that on Sunday evening before the trial of this case some friends of a candidate on the ticket with appellee, who also had a contest, appealed to him to let them have an oportunity to get into the vault where the ballots were; that they gave him some- whisky to drink which made him sick and confined him to his bed until the following Wednesday; that when he first
However, appellant did not state any fact in his petition which would authorize the court to open the ballot boxes. The substance of his charge was that a recount of the ballots would show that he was elected' instead of appellee. In the Edwards-Logan Case, supra, the allegations were that the canvassing board made grave errors in counting the votes" to the plaintiff’s loss and disadvantage, and then prayed the court to recount the ballots cast at the election. This court said these grounds were not sufficient to authorize a recount, and continued as follows: “Any other practice would foster and encourage speculative contest, based, not upon known facts or reasons, but made in the hope that something might be discovered. It would be to make this court a canvassing board, and to substitute commissioners appointed by the court for the canvassing board created by law.” In McCrary on Elections (Ed. 1887) sec. 400, it is said:
The question as to the failure of the judge to vacate the bench upon the filing of the affidavits by appellant alleging his incapacity to preside is a more serious question. Without entering into the details of the facts contained in the affidavits, it is sufficient to say-that, in our opinion, the judge should have declined to preside. But we.are also of the opinion that appellant waived his right to require the judge to vacate .the bench for the following reasons: He suffered and permitted the court to pass upon a demurrer to his petition on the 2d day of December, 1909, and appellee to file a written motion to strike from his petition certain parts, to which he objected, and on the 3d day of December, 1909, appellee filed his answer and counter contest. Appellant filed his affidavit objecting to the judge trying the case on December 4, 1909. In the case of Hargis v. Commonwealth, 123 S. W. 239, 135 Ky. 578, this court said: “The rule is that an objection to the trial judge raises in effect a question of jurisdiction, and the objection, to be available, must be made before an appearance to the' merits of the action or the submission of preliminary motions by either party preparatory to a trial. Kentucky Central R. R. Co. v. Kenney, 82 Ky. 154; German Ins. Co. v. Landrum, 88 Ky. 433, 11 S. W. 367, 592, 10 Ky. Law Rep. 1039; Vance v. Field, 89 Ky. 178, 12 S. W. 190, 11 Ky. Law Rep. 388; Russell v. Russell, 12 S. W. 709, 11 Ky. Law Rep. 547; Bales v. Ferrell, 49 S. W. 759, 20 Ky. Law Rep. 1564.” Under these
Perceiving no other error prejudicial to the substantial rights of appellant, the judgment is affirmed.