On Motion for Rehearing.
Mr. Justice Beandelivered the opinion.
This cause was tried without the intervention of a jury. A recount was made of all the ballots cast for the office in question, and the court, having made findings of fact upon all the disputed ballots, decided that the defendant was elected by one vote, and entered judg*483ment accordingly. The plaintiff and contestant appealed, assigning as error sundry rulings and conclusions of the court against him. Upon the hearing of the appeal it was determined that none of such assignments Avere well taken, except the one based upon the action of the court in counting for the defendant the ballot described in finding number 26, and marked Avitli the letters “0 K.” This conclusion would necessarily leave the vote a tie, Avere it not for the fact that it affirmatively appears from the findings of the court and its conclusions of law that it also illegally counted at least íavo ballots for the contestant. Among the unquestioned findings are numbers 6 and 7, to the effect that certain ballots, with the words “voted for” written with an indelible pencil on the face thereof, were counted for the plaintiff and contestant, and, within the rule which renders the “0 K” ballot void, should not have been counted; so that, notAvithstanding the court erroneously counted the “OK” ballot for the defendant, he still received a greater number of legal votes than the plaintiff. It is true, the defendant did not appeal; but he had no occasion or right to do so, because the judgment was in his favor. But, nevertheless, we cannot reverse the judgment upon this record, which shows upon its face that certain ballots were improperly counted for the plaintiff, and that by excluding them the judgment is correct, although it may have been based upon a wrong reason. The condition is that there were three ballots cast, each of which had upon the face thereof such a distinguishing mark as to render it void under the statute; but they were all counted by the court below, — two for the plaintiff, and one for the defendant. The plaintiff insists that the judgment should be reversed because one of them was counted for the defendant, notwithstanding the fact that the other tAVO were counted for himself. It is claimed, *484however, that the ballots referred to in findings numbered 6 and 7 are not in the record, and that no question is made as to their competency or admissibility in evidence. This may be true, but we are not dealing with the ballots, but with the ultimate facts as found by the court; and the question for our determination is whether, upon such facts, the judgment should be affirmed or reversed. And, as it appears that there were cast for the defendant more legal votes for the office of county clerk than were cast for the plaintiff, the judgment of the court below is manifestly right, and ought to be affirmed. While the defendant could not claim any advantage from the ruling of the court against him for the purpose of obtaining in this court a more favorable judgment than he obtained in the court below, yet he is entitled to the benefit of any error made by such court in counting ballots for the plaintiff, for the purpose of upholding and sustaining the judgment from which the appeal is taken.
The other questions referred to in the petition for rehearing were all carefully considered, and are disposed of in the former opinion, and we do not deem it necessary to go over them again.
Rehearing Denied.