Lemaire v. Walsh

By the Court,

Fitzgerald, J.:

This is an election contest, in which the eontestee, P. Walsh, appeals to this court from a judgment against him in the court below adjudging that the contestant, H. R. Lemaire, was entitled to the office of long term commissioner of the county of Lander for the term of four years from the first Monday in January, 1903, and also from an order of said court denying his motion for a new trial.

Respondent makes a preliminary motion in this court to dismiss the appeal because of certain irregularities in the manner of the transmission of the papers and record on appeal from the court below to this court. There were irregularities; and, indeed, such as should never occur in such matters. But, while the irregularities were considerable, and we take occasion here to admonish those into whose hands the management of such matters fall that they should be careful to examine the statutes governing the transmission of records to the appellate court, and also to comply therewith, we hardly think that so severe a punishment should be applied as to dismiss the appeal. Therefore the motion to dismiss the appeal is denied.

Respondent objects to tbe sufficiency of the statement of contest in this case because in the_ title of the cause the name of the contestant is written "H. R. Lemaire” and contestee’s "P. Walsh,” and in the body of the statement contestant’s "Henry R. Lemaire, the above-named contestant,” and the statement is subscribed and sworn to by "Henry R. Lemaire,” and in the body of the statement contestant "complains of Patrick Wals, the contestee above named, and for cause of contest alleges,” and further on "charge Patrick Wals,” and so forth; and again the statement deals with "said Walsh” till it comes to the prayer, when he is called "Patrick Walsh.” Perhaps, on demurrer, or on motion to strike out or make certain, it might have been proper for the trial court to have ordered the statement of contest made definite in this respect, as containing misnomers and typographical errors; but appellant, having passed it there, should not, we think; be permitted to avail himself of it here. At the most, it would have been a defective statement of a cause of action, and not a failure to state any cause of action.

The same principle of a defective statement of a cause of action, but not a failure of statement thereof, applies to appellant’s next objection, to .wit, that the time for the commencement of the term of office of county commissioner for which contestant claimed that he was duly elected over contestee is not definitely stated. Without quoting the allegation of the statement of contest in this respect, we think it sufficient here to state that this objection should likewise have been taken in the trial court by demurrer or motion, and, not having been so taken, it cannot be taken here now.

The foregoing, we think, disposes of all preliminary matters, and brings us to the consideration of the main point in the contest.

A number of ballots cast at the election were brought up as exhibits on the appeal, the rulings upon which by the trial court appellant claims were erroneous. We deem it unnecessary to go into detailed description of the defects claimed in these ballots, except in one case. Inasmuch as all the objections except this one where substantially discussed by this court in the recently decided case of State v. Sadler, 25 Nev. 131, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128, 83 Am. St. Rep. 573, and, as we do not feel justified in now overruling any decision of this court that was involved in the case named and likewise in this case now before us, nothing could be gained by a repetition here of the discussions made there. There is, however, one alleged defect that counsel for appellant argues on a point not, we think, mentioned in the opinion in State v. Sadler. That point is that the statute does not provide for a " square” in which the voter shall put the " cross or X” by which he is to designate his choice for an office; and also that the ballots provided by the officers and furnished to the voters at the election in contest did not contain any square, but only a parallelogram, with length about double its width. An inspection of the ballots brought here shows that there was, indeed, on them no mathematically correct square, to wit, a figure with four equal sides and four equal angles. But we think the oblong figures with length about double the width on said ballots was a square in the sense of the statute, and that this argument of counsel is not of sufficient strength to work a change in the decision of this court as made in the case in 25 Nev., 58 Pac., 59 Pac., 63 Pac., 83 Am. St. Rep. In common discourse the phrase " oblong square” is heard not unfrequently.

The trial judge practically found as facts in the case that all of the matters on the ballots that were objected to by appellant — the "blotch,” the "blur,” etc. — came upon them by innocent acts of voters, to wit, from folding, and so forth, or from the action of others after the ballots had been cast, to wit, persons handling the said ballots in the four proceedings that had been had upon them before they were brought into trial court in this case. We do not find sufficient in the ballots themselves or in the record before us to justify overruling and setting aside this finding.

The objections that there were "erasures destroying texture of paper” is, we think, not sustained by the evidence of the ballots. There were, we think, thin places in the paper on which the ballots were printed, and a roughened surface, caused probably by handling the ballots so frequently; but the texture of the paper was not broken or destroyed.

The order of the trial court denying appellant’s motion for a new trial, and the judgment thereof in the case, are affirmed.

Belknap, O. J., and Talbot, J., concur.