156 N.W. 579 | S.D. | 1916
This action was instituted by plaintiff to contest the election for county commissioner held in one of the commissioner districts in Pland county on November 3, 1914. The election canvassing board found that plaintiff had received 162 votes, and that defendant had received 165 votes, and declared defendant elected to said office, and issued to him a certificate of election. Plaintiff alleged that certain ballots were erroneously counted for defendant, and that certain other ballots were erroneously not counted for plaintiff, by reason of which plaintiff should have been declared legally elected to said office instead of defendant. After hearing the evidence on the trial, the court found that the vote, as between plaintiff and defendant, had resulted in a tie, and that neither plaintiff nor defendant had been elected, each having received 160 votes, and the judgment was thereupon rendered canceling defendant’s certificate of election. From the judgment and order denying a new trial, defendant has appealed.
We are also of the view that ballot Ay was erroneously count-ea for defendant. This ballot was erased and mutilated the same as ballots like Ai, but as to other candidates than plaintiff or defendant. For the same reasons as applied to ballots like Ai, this ballot A7 should not have been counted for any one.
The judgment and order appealed from are reversed, and the cause remanded, with directions to enter judgment for defendant, dismissing plaintiff’s contest upon the merits.