44 S.W.2d 569 | Ky. Ct. App. | 1931
Affirming.
A municipal election was held in the city of Pineville on November 3, 1931. The electors in Ward 2 B were entitled to vote for two councilmen. For the two offices there were four candidates, J.H. Bolton, R.B. Elliott, James I. West, and Pinquard M. McCoy. The *637 election commissioners certified that McCoy received 261 votes, West 183 votes, Elliott 181 votes, and Bolton 131 votes. Thereafter Elliott filed a contest in the Bell circuit court against West, McCoy, and the election commissioners, and requested a recount of the ballots under the provisions of chapter 50, Acts 1930. A recount was had, and it was adjudged that Bolton received 131 votes, that McCoy received 258 votes, and that Elliott and West each received 182 votes, thus resulting in a tie. From that judgment West has appealed as against Elliott.
The only ground on which a reversal is asked is that the court erred in not counting for West a ballot which is before us by stipulation of the parties. First on the ballot is the Republican ticket, with the name of J.M. Brooks as candidate for mayor, and the names of J.H. Bolton and R.B. Elliott as candidates for councilmen. Next is the device of Richard Dyche, Independent candidate for mayor. Following this is the device of Joe Bain, another Independent candidate for mayor. To the right of Bain's device is the device of appellant, James I. West, another Independent candidate for councilman. His device is a Liberty Bell. Underneath the bell is a circle. Below the circle is West's name with a square opposite. Beneath his name is a blank line with a square opposite. Next to West's device is the device of Pinquard M. McCoy, another Independent candidate for councilman, under a device of his own styled Citizen's Party, with a capital M beneath. Under the device is a circle, and below the circle is the name Pinquard M. McCoy, with a square opposite his name. Below his name is a blank line, with a square at the end of the line. On this ballot there is a blur in the circle beneath the Republican device, a blur in the circle beneath the picture of Dyche, candidate for mayor, and a blur in the circle beneath the Liberty Bell, the device under which West ran. We are concerned only with the vote for Bolton and Elliott under the Republican emblem, and the vote for West under the Liberty Bell. As many voters do not use the stencil properly, we have ruled that a blur instead of a cross is sufficient to indicate the voter's choice. Hehman v. City of Newport,
We do not regard Little v. Hall,
On behalf of appellee, it is insisted that his motion for a judgment, notwithstanding the finding of the circuit judge, should have been sustained on the ground that no demurrer, motion, nor answer was filed by appellant. In response to this contention, it is sufficient to say that, as appellee has prosecuted neither a direct nor a cross-appeal, the action of the court in overruling his motion, even if erroneous, is not subject to review. Conn. v. Hardin,
Judgment affirmed.
Whole court sitting.