The appellant has petitioned for a modification of the judgment herein. He asks that instead of remanding the cause for a new trial, this court should direct the entry of a final judgment in his favor, and I think he is clearly entitled to that relief, upon the record as it stands.
The substance of the material findings of the superior court is, that, according to the canvass by the election board, the respondent received 24,018 votes and the appellant 23,753, *Page 156 but that 683 marked and otherwise illegal ballots had been improperly counted for respondent in making that canvass, and 621 marked and otherwise illegal ballots improperly counted for appellant, so that, after deducting the ballots thus improperly counted for the respective parties from the vote as returned, the true count showed that respondent had received 23,335 votes, and appellant 23,132 votes, leaving the respondent a plurality of 203 votes.
Such were the findings of the superior court, but this court, in view of the sole and uncontradicted evidence in the case, — the ballots themselves, — decides that about fourteen hundred ballots counted for respondent by the superior court were illegal and void. It decides, in other words, that the finding in favor of the respondent is erroneous, and wholly unsustained by the evidence, to the extent of fourteen hundred votes, and that he really received twelve hundred legal votes less than appellant is found to have received. On the findings as thus corrected, the appellant is entitled to the office, and to a final judgment in this court. But he is deprived of that relief because the record does not contain the exceptions of the respondent to the rulings of the superior court admitting or rejecting ballots, and it issurmised that if these exceptions were in the record it might appear that erroneous rulings were made upon ballots objected to by respondent, but counted for appellant, sufficient in number to neutralize or overcome the errors which we have held were committed in counting illegal ballots for respondent. I do not think we are justified in acting upon such a supposition. It does not appear, even indirectly, that respondent took a single exception to any ballot counted for appellant, and it is only indirectly shown that he excepted to the rejection of any of the 683 ballots counted for him by the election board. These exceptions are not contained in the record, and cannot be presumed to have possessed any merit; but conceding every one of them to have been well taken, they were not sufficient in number to alter the result. The opinion of the Department holds — and in so holding is sustained by both reason and authority — that proper practice required all exceptions of both parties to be included in the record, in order that this court might give a final judgment in favor of the party entitled to the office. It appears that the appellant was desirous of having the record so made up, but that *Page 157 the respondent made no effort to have his exceptions included, and while it is true that the trial judge in settling the bill of exceptions erroneously held that the respondent was not entitled to have his exceptions appear, it is also true that the law gave him a summary and effective remedy to compel their allowance; and the fact that he made no attempt to avail himself of that remedy deprives him of the right to ask this court to indulge the surmise that he may have had exceptions to ballots counted for appellant sufficient to overcome the plurality which appellant appears to have received.
The cases cited in the Department opinion to show that the practice of this court has been to remand election contests for new trial upon reversal of the judgment of the superior court, do not sustain that disposition of the present case. In the cases cited, this court could not have given final judgment in favor of appellants without making affirmative findings of fact that had not been made by the trial courts. In this case the fact is found, that appellant received 23,132 legal votes, and the finding that respondent received 23,335 legal votes is simply held to be unsustained, to the extent of some 1,400 votes, by any evidence. To make the proper deduction in such case for want of evidence, is not to make a finding, and the deduction being made, the appellant appears to be clearly entitled to a final judgment on the findings. This being so, such a judgment alone is a proper one, and more especially in an election contest, where the result of ordering a new trial must inevitably be that the term to which the appellant appears to have been chosen will have expired long before a new trial can be had.
For these reasons I dissent from the order of the court denying a modification of the judgment. *Page 158