29 Nev. 347 | Nev. | 1907
By the Court,
Appellant and respondent were rival independent candidates for the office of County Commissioner of Lyon County for the short term, at the general election held on November 6, 1906. On the 12th day of November, 1906, the Board of County Commissioners of Lyon County met and canvassed the returns of all the voting precincts of Lyon County, excepting those from Churchill Precinct, and from such canvass found that the appellant, Turner, had received 277 votes, and respondent, Strosnider, had received 275 votes. LTpon such canvass the commissioners directed that a certificate of election be issued to C. C. Turner for the office in question, and the same was so issued. The commissioners of Lyon County refused to canvass the returns of Churchill Precinct, for the reason that they had not been forwarded from the election precinct in the manner and to the person authorized by law. Respondent brought this action to contest the election of Turner, alleging irregularity upon the part of the board of county commissioners in refusing to canvass the returns from Churchill Precinct, and upon the part of the election officers of the various precincts in counting votes for appellant which should not have been counted, and in failing to count votes for respondent which should have been counted for him. The contest came on regularly for trial in the lower court, and that court admitted and counted the ballots of Churchill Precinct, as well as all the other precincts of ’the county, excepting nine ballots, which were rejected by the trial court, as containing distinguishing marks. -From the count made by the trial court it was found that the
Counsel for respondent have embodied in their brief an objection to the consideration of the appeal upon the ground that the transcript on appeal does not contain a copy of the judgment roll, as required by'Comp. Laws, 3431. The record contains duly certified copies of all papers required by statute to constitute the judgment roll, excepting the summons, provided a> summons was issued and returned in the case. The record nowhere discloses whether a summons was or was not issued, and we know that defendants may, and sometimes do, appear and answer a cause of action without the formality of a summons. A summons may be issued and served, and if the defendant appear and answer, the purpose of the summons has been accomplished. If the sheriff, in such case, should neglect to file the summons with his certificate of' service, or if the same should be lost, as sometimes happens, doubtless the clerk or the parties to the action would pay no attention to its omission, and the judgment roll would be made up without it. In the case of a default judgment, the summons, of course, would be an essential part of the judgment roll, and its omission might lead to serious results; but, in a case where parties defendant have appeared and,answered, its omission from the judgment roll would ordinarily have no effect. So far as the consideration of any question presented upon this appeal is concerned, a summons, if issued, would be immaterial. In the absence of a showing that a summons was issued, we will not presume such fact in order to sustain a purely technical objection like that here presented.
Counsel for appellant has assigned as error numerous rulings of the trial court; but, in the view we take of this ease, we need only considór those rulings in reference to the rejected ballots embodied in the record.
Rejected Ballots Voted for Appellant: Ballot marked "Contestant’s Exhibit No. 11” does not contain a single cross
Ballots marked "Contestant’s Exhibit No. 9,” "Contestant’s Exhibit No. 10,” and "Contestant’s Exhibit No. 12,” are similar in so far as the objection made to them is concerned. Exhibits No. 9 and No. 12 each contain a cross stamped in the square to the right of the name of George A. Bartlett, candidate for member of congress, and Exhibit 10 contains a cross stamped in the square opposite the name of
If the officials charged with the duty of providing the stamps to be used at elections would be particular in the selection of such stamps for the voter’s use, all questions like that here presented would be avoided. There should be no difficulty in having stamps made so that it would be nearly impossible for the voter to stamp anything but a clear and well-defined cross.
The record contains five ballots rejected by the trial court as containing distinguishing marks, which contain votes for respondent. The rulings upon these ballots are not assigned as error, and hence such rulings are not before the court for consideration. (Dennis v. Caughlin, 22 Nev. 453, 41 Pac. 768, 29 L. R. A. 731, 58 Am. St. Rep. 761.)
The three ballots which we have held should be counted in favor of appellant would give him a majority of two votes as
It is therefore ordered that the judgment be reversed, and the cause remanded for a new trial.