27 Ind. 191 | Ind. | 1866
The appellant and appellee were the opposing candidates for the office of treasurer of Johnson county, at the annual election in October, 1864. The board of county commissioners declared Wheat elected to said office by a majority of one hundred and seventy-nine votes, and thereupon Bagsdale instituted these proceedings, before the board of commissioners, against Wheat, to contest said election.
Within ten days after Wheat was declared elected, Bags-dale filed with the auditor of said county a written statement, specifying the grounds of contest, verified by his affidavit, sworn to before said auditor. The specifications were stated as follows:
“First. For maleonduct of William MeGaslin, inspector of the election precinct in the township of Franklin, in said county, in this, to-wit: that the said William Me Gaslin, in violation of his duties as such inspector, corruptly, unlawfully and fraudulently took out of the box in which the ballots at said election were deposited, which was in his custody, and destroyed two hundred legal tickets, or ballots, deposited by legal electors at said election, and before said ballots were counted, on which was the name of the contestor as a candidate for said office of treasurer of Johnson county, and put into said box, in lieu thereof, two hundred and sixteen ballots, or tickets, on which was the name of said Melville Wheat, contestee, as aforesaid, for said office of treasurer. And further, that the said William MeGaslin, trustee and inspector, as aforesaid, having possession of said ballot-box, and before the ballots therein had been counted,- negligently and carelessly loft said box so exposed that some person or persons, to the contestor unknown, 'corruptly, unlawfully and fraudulently took out of said ballotrbox, and destroyed, two hundred legal ballots, or
“ Second. And for a further cause of contest herein, the contestor states that at said election, held at the usual place of holding elections in said county, as aforesaid, there was a large number of illegal votes, or ballots, east for said eontestee, and counted-for him by the board of election afoi'esaid, to-wit: two hundred legal ballots, or tickets, having on them the name of the contestor for the office of treasurer of Johnson county, were fraudulently, corruptly and unlawfully taken out of the ballot-box, in which were deposited the ballots for the said township of Franklin, and destroyed by some person or persons to-the contestor unknown, and two hundred and sixteen illegal ballots, or tickets, were placed in said box, in lieu of those taken out, having on them the name of Melville Wheat for treasurer* as aforesaid. Eifty illegal votes, or ballots, were permitted to he deposited, at the election aforesaid, in the ballot-box, in the said township of Franklin, by persons unknown at this time to the contestor, who were not then twenty-one years .of age, and by other persons' who did not reside in said township. Eifty illegal votes, or ballots, were permitted to be deposited, at the election aforesaid, in the ballot-box then used for the purposes of said election, in the township of Blue Fiver, by persons unknown at this time to the contestor, who were not then twenty-one years of age, and by other persons who did not reside in said township. Twenty illegal votes, or ballots, were permitted to be deposited, at the election aforesaid, in the ballot-box then and there used for the purposes of said election, in the township of Olark, by persons whose names are unknown at this time to the contestor, who were then under the age of twenty-one years, and by others who did not reside in said township,
Wheat, having been duly notified of the pendency of the proceedings, appeared before the commissioners and filed a written motion to dismiss the cause for the following reasons, viz:
1. Because the complaint did not state facts sufficient to constitute a cause of contest.
2. Because the averments in the complaint were indefinite, uncertain and contradictory.
3. Because the statement of the eontestor was not verified by a sufficient affidavit.
This motion was overruled, and he then moved that certain portions of the statement of the causes of contest be stricken out, for the reason, as to some of them, that they were indefinite and uncertain in their averments, and as to others, in which illegal votes were alleged to have been given for the defendant,, because it was not averred how many such illegal votes were given, who gave the same, nor in what the lack of qualifications in such voters consisted; nor that any member of the hoard of judges or canvassers, at the precinct where the same were deposited, was guilty of any malconduct whatever; and because the names of the persons who cast such illegal votes were not given. This motion was also overruled, and the defendant then demurred to each cause of contest. The demurrers were overruled, and he then moved the court that the plaintiff be required to furnish the names of the persons who deposited the illegal votes, as in his statement
The defendant answered in four paragraphs. The first was the general denial. The second, third and fourth alleged that illegal votes were given in the several townships of said county for the plaintiff, stating the number of such illegal votes, by persons under twenty-one years of age, and by persons who were not residents of the township in which they voted, and by other persons who had not resided in this State six months next preceding the time of said election, and by others of foreign birth who had not declared their intention to become citizens of the United States, and by other persons of foreign birth who had not resided in the United States for one year before said election.
The plaintiff replied in denial of said second, third and fourth paragraphs of the answer. The contest was tried by the board of commissioners of the county, who found that at said election Eagsdale received 1,731 votes for said office of treasurer, and that said Wheat only received 1,571 votes, and that Eagsdale was therefore duly elected to said office, and judgment was rendered .accordingly. Wheat appealed to the Circuit Court.
In the latter court, Wheat renewed his motion to dismiss the cause, for the same reasons, substantially, as those filed before the commissioners. The motion was overruled, and he excepted. Ho then moved the court to strike out each separate allegation of the statement of the grounds of contest : 1. Because the statement of the contestor is not verified by a sufficient affidavit. 2. Because said statement does not state facts sufficient to constitute a cause'.of con
Several questions are presented by the appellant, as grounds for the reversal of the finding and judgment of the. Circuit -Court, which will be considered in the order in which they are named in the appellant’s brief.
The first objection presented is, that the county auditor was not authorized by law to administer the oath to Mags-dale, the contestor, by which his written statement of the
If the section under consideration is to be construed to authorize the auditor to administer an oath only when his duties cannot be discharged without the exercise of that
But it is insisted by the appellant that if the auditor was competent to administer the oath, still the affidavit was insufficient under the statute, and the proceedings should, for that reason, have been dismissed. The affidavit reads thus:
“ William S. Ragsdale, the-above named contestor, and an elector of Johnson county, Indiana, upon oath sayS, that the matters and facts set forth in the foregoing complaint, so far as the same are stated on his own knowledge, are true, and so far as they are stated on information derived from others, he believes them to be true.
““William S. Ragsdale.”
It was duly sworn to before the auditor, whose jurat was properly attached. The ohjeetion urged to the affidavit is, that neither it nor the statement of the grounds of contest shows what particular matters are stated upon the personal knowledge of the affiant, and what on the information of others; and hence that the affidavit is uncertain, indefinite, and evasive, and therefore insufficient. We do not so understand the statement of the-grounds of contest. Every material allegation in it is stated directly and positively, as upon the knowledge of the contestor. True, in one of the
Th<? next question presented by the appellant, and relied on for a reversal, relates to the action of the court in permitting Ragsdale to file a supplemental statement of the grounds of contest. The amendment or supplemental statement thus filed, as before stated, related to the illegal votes alleged in the original statement to have been given for Wheat by persons under twenty-one years of age, and by non-residents, in the townships of Kranklin and Clark, and consisted simply of the names of the persons so alleged to have voted illegally in those townships, and was, in substance, the same as the list filed before the-commissioners at the instance of Wheat. The court permitted it to be filed, pending the appellant’s motion to strike out those specifications for uncertainty.
It is assumed by the appellant’s counsel that the specifications were insufficient because they did not contain the
For the reason stated above, we'think the court erred in ordering that the appellant should not be permitted to introduce any evidence under the second, third and fourth paragraphs of his answer. Indeed, this order seems to be without authority to support it in practice. If the paragraphs were so defective as not to admit any evidence under them, the demurrers to them should have been sustained, or they should have been stricken out on motion, on the refusal of the appellant to make them more certain.
A bill of exceptions purports to contain all the evidence given in the cause, and shows that during the trial the plaintiff offered in evidence the record of the trial before the board of county commissioners, to which the appellant objected, but the court overruled the objection and permitted the record to be given in evidence, which was accordingly done. This ruling was excepted to. The object of the evidence was to prove certain admissions made by the appellant on the record, on the trial of the cause before the commissioners. The statement in the record as to the admissions of the appellant is as follows: “And the contestor, in discharging the motion entered against him, files a
It is clear to our minds that the court erred in permitting the record of these alleged admissions to be given in evidence. A party to a suit may bind himself by admissions of record of material facts involved in the case, where such admissions are made for the purposes of the suit; but here the facts alleged were not admitted to be true in fact, but were simply conceded to be so, for the purposes of the trial before the commissioners. The appellant’s majority in the county, as declared by the county canvassers, was only 179 votes. His majority in Franklin township, as returned by the township board, was 611, out of a total vote of 995, and if he intended to admit it to be true that he received forty-eight illegal votes at that poll, as stated in the list filed by the contestor, thus reducing the whole number to 947, and if he intended further to admit that the contestor in fact received of the last number 358, it would reduce his own vote in that, township to'589, and his majority there to 231, instead of 611, as returned by the township board, thus conceding the election of the contestor beyond controversy. "With such an admission of facts staring him in the face, it would be the extreme of folly to contest the case further. But from the language of the concessions, as well as from all the surrounding facts, it is clear that the appellant did not admit, and did not intend to admit, as true, on a final trial, the matters so conceded before the commissioners. The concessions had served the purpose for which they were made when the trial before the commissioners terminated, and they should not have been received as evidence against the appellant, on the trial in the Circuit Court. The effect given by the court to these alleged admissions of record, as will hereafter appear, determined the cause against the appellant.
The finding 'of the court is in the form of a written opinion upon the questions, both of law and fact, involved in the ease. The length to which this opinion has already
It may be remarked in reference to the concession made
The court found from the evidence, that only two hundred and sixty-eight votes were given for Ragsdale in Franklin township, while it was conceded by the appellant, before the commissioners, that three hundred and fifty-eight persons had voted for Ragsdale at that poll. This was a concession of all that was necessary to enable the commissioners to credit Ragsdale with that number of votes; and if the concession as to the fifty-one illegal votes was conclusive upon Wheat, it would certainly be equally conclusive as to the three hundred and fifty-eight votes for Ragsdale, and we are at a loss to perceive upon what principle the court héld the one conclusive and disregarded the other.
One other question remains to be noticed. The contestor introduced as a witness on the tidal, one Charles H. Patterson, who testified that he was thirty-two years of age; that at the time of the October election, in 1864, and for nine months or a year previous thereto, he lived in Franklin township, in said county of Johnson, and voted in said township at said election. He was then asked to state for whom he voted for the office of treasurer of said county. The counsel of Wheat objected to the witness answering the question, for the reasons:
1. That the ballot of the witness was the best evidence.
2. Because the ballots of the witness-and others had been put in evidence by the contestor.
8. Because oral evidence is not admissible when record evidence is available.
The judgment is reversed, with costs, and the cause remanded for a new trial.