189 S.W.2d 851 | Ky. Ct. App. | 1945
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *566 Affirming.
In the primary election held on August 4, 1945, Roy Wilhoit, L.H. Liles and T.E. Nickel, were candidates for the Republican nomination for Commonwealth Attorney of the Twentieth Judicial District, composed of the counties of Lewis and Greenup. Wilhoit was the victor over Liles by a margin of 11 votes and Nickel ran last. Within the time prescribed by statute, Liles filed this action against Wilhoit and the county board of Election Commissioners, under KRS 122.060, asking a recount. Included in the petition were averments that Wilhoit had violated the Corrupt Practices Act, KRS
A recount of the ballots in all precincts in both counties resulted in a judgment declaring Liles the nominee by 56 votes and the Election Commissioners of the two counties were ordered to reconvene and certify the returns of the recount of the vote of their respective counties to the State Election Commission. The judgment was entered on August 28, and Wilhoit filed his supersedeas bond within the time provided in KRS 122.040 and prosecuted an appeal to this court which raises but two questions: (a) Whether the judgment should be reversed for the trial judge's failure to vacate the bench upon affidavit filed by Wilhoit; (b) was the integrity *567 of the ballots established by Liles so as to entitle him to a recount?
Before reaching these questions, we are met with Liles' motion to dismiss the appeal because the transcript of the evidence was not filed in this court within 10 days after the entry of the judgment as is provided in KRS 122.060. This motion must be overruled.
The judgment entered August 28 gave Wilhoit until September 15 to prepare and file his bill of exceptions wherein he incorporated in the record the testimony heard orally before the trial judge and reported by the official stenographer. Wilhoit filed his entire record here on September 5 with the exception of the transcript of the evidence. On September 6, the tenth day from the entry of the judgment, he filed a motion asking the Chief Justice to allow him until September 17 to file a transcript of the evidence, as he had been unable to get the trial judge to sign his bill of exceptions. This time was granted and he filed this transcript on September 11.
Liles insists that neither the trial court nor this one can extend the time for filing the record here beyond the ten days allowed by statute; that no motion for new trial was filed; and that after the supersedeas bond was executed the trial judge could enter no further orders such as approving the bill of exceptions on September 10.
Section 738 of the Civil Code of Practice provides the time for filing a record here on an ordinary appeal, unless for cause shown that time is extended by us. In construing this section in Cline v. Cline,
The right to a recount or to contest an election, and the procedure to be followed, is purely statutory. It is provided in KRS 122.030 that the court shall hear and determine all questions of law and fact without a jury, and that the proof may be taken orally or by deposition. No provision is made for a motion for a new trial, hence it is not necessary that such a motion be made in order to perfect an appeal.
The execution of a supersedeas bond does not prevent the trial judge from subsequently approving a bill of exceptions. Otherwise, a litigant with a judgment rendered against him at one term who asked and was granted until a day certain in the next term to file his bill of exceptions, would find himself in the anomalous position of being unable to prosecute his appeal if he protected himself from an execution by superseding the judgment.
The substance of the affidavit which Wilhoit filed to swear Judge Parker off the bench is that the Judge was fill unsuccessful candidate in the primary, was violently opposed to Wilhoit, personally and politically, and on many occasions expressed a deep-seated, violent, and malicious dislike for and animosity toward him, both personally and as a candidate, and that the Judge was active in advocating the candidacy of Liles, which he openly expressed. It further, averred that the Judge was very ill and debilitated and of such mental condition as to be unable to undergo the strain of the trial, and could not and would not render a fair judgment therein.
Appellant argues that Judge Parker exhibited his animus by filing a response to this affidavit when he was bound to know that the truthfulness of the facts stated therein cannot be questioned (Benge v. Commonwealth,
Judge Parker should have vacated tile bench but his failure to do so has not prejudiced appellant here because we will examine the record for ourselves and will reach our own conclusion without giving weight to the findings of a trial judge when the affidavit clearly shows was disqualified from trying the case. Such cases as Massie v. Commonwealth,
It might be stated the general rule is that ballot boxes will not be opened for a recount until the person seeking it first shows not a mere probability that the integrity of the ballots has been preserved since the election, but that fact must be established with a reasonable degree of certainty. Edwards v. Logan,
In Lewis County there was no effort made to comply with the statute as to the protection of the ballot boxes. After the polls closed, instead of the boxes being delivered to the county court clerk, who should put a guard over them until they are counted, KRS
Since no effort was made to care for the boxes in Lewis County as provided by statute, and as for a week they were exposed to the wiles of the public, we have reached the conclusion that it would be dangerous to open them since by so doing unreliable evidence could be used to impeach the Election Commission's return. The trial judge erred in opening the boxes in Lewis County and recounting the vote, and the original returns showing Wilhoit received 1320 and Liles 1143 votes should stand.
Better care was taken of the Greenup County ballots. After the count they were returned to the county court clerk who stored them in the quarterly court room where they remained under the care of two guards until the filing of this suit when they were delivered to the circuit court clerk, who kept them locked safely in a vault in his office until produced before the trial judge. H.H. Donald, one of the Election Commissioners, testified that the ballots were placed back in the box loose after being counted and that one of the boxes would not lock, which was Fullerton No. 1 or No. 2. Harlan Bowling, one of the men who guarded the boxes until they were delivered to the circuit clerk, also testified that one of them would not lock on the night of the original count, but he could not remember the precinct from which it came. Both Donald and Bowling examined the boxes while on the stand and testified that all of them were at that time locked. At first blush, it would appear that someone had tampered with this particular box, or at least had locked it, as the record fails to show that this act was done by anyone in charge of these boxes.
Upon the recount of the two Fullerton precincts there was no change in the vote, and this shows conclusively there had been no tampering with those ballots. Of course, somebody locked this box after Donald and *571
Bowling noticed it would not lock on the night of the original count. But looks at times act capriciously and if the county clerk, circuit clerk, or some deputy in either office, succeeded in making the lock close on this particular box, this would not amount to tampering with it. Such would be an innocent act to protect the integrity of the ballots. Nor does the subsequent locking of this box indicate that there was tampering with the other boxes in Greenup County as they appeared to be regular and in good order on the recount. And the fact that after the original count the ballots were placed loose in the boxes, and KRS
The trial judge properly granted a recount in Greenup County as the proof showed the integrity of the ballots in that county had been maintained. The recount in Greenup County showed that Wilhoit received 701 and Liles 881 votes. When these respective figures are added to those shown by the original count in Lewis County where Wilhoit received 1320 and Liles 1143 votes, it is seen that in the district composed of the two counties Wilhoit received a total of 2021 and Liles a total of 2024 votes, giving Liles the nomination by a margin of three votes.
The judgment is affirmed.
Judge Dawson not sitting.