By the Court,
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.
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.
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.