Peters v. Morey

51 N.W. 312, 34 Neb. 82, 1892 Neb. LEXIS 76

• Court: Nebraska Supreme Court
• Decided: February 24, 1892
• Status: Published

Opinion

Norval, J.

This is a proceeding to contest the election held on the 6th day of October, 1885, in Sheridan county, for the purpose of locating the county seat of said county. The cause was submitted to this court on the 18 th day of April, 1889, but by inadvertence the record was not passed in to the court, or put on the docket of submitted cases until the present term.

The returns of the election in question, made to the county clerk by the judges of election of the different precincts of the county, show that 1,758 votes were cast on the question of locating the county seat, of which Rushville received 919 votes and Hay Springs received 839 votes. All the votes in Hunter precinct, 226 in number, were returned as being cast in favor of Rushville. The county canvassing board, in canvassing the returns of said election, threw out 184 of the votes returned from Hunter precinct, thereby making a majority in favor of Hay Springs. On application to this court at the July term, 1886, a peremptory writ of mandamus was issued requiring the canvassing board to reassemble and canvass all the votes returned from Hunter precinct. (State v. Hill, 20 Neb., 119.) In obedience to the writ the canvassers reconvened and canvassed the votes, and Rushville, haying a majority of eighty votes, upon the face of the returns' was declared the county seat.

In the amended complaint, filed by the contestant, it is charged that 212 of the votes returned as having been cast in Hunter precinct were fraudulent and were not cast, but after the close of the polls, with the connivance of the judges of election, the poll books of said precinct were fraudulently changed and altered by writing on said poll books 212 fictitious names, and that a like number of fictitious ballots were placed in the ballot box of said precinct ; upon each of said ballots Rushville was named as • the place for the county seat, and were so counted; that'. 42 fraudulent and illegal votes were cast and counted for' Rushville, in Beaver Creek precinct, and that 130 votes cast in Rushville precinct were fictitious and fraudulent and were counted for Rushville for county seat.

The contestees answered, denying the allegations of the-amended complaint, and as a further defense allege that there were cast and counted for Hay Springs for county-seat 243 fraudulent and illegal ballots in Hay Springs, precinct, and 65 illegal votes in Gordon precinct.

The facts are stated in the answer with considerable particularity.

A reply was filed, trial had, and upon the pleadings and evidence the district court found that Rushville received a majority of all the legal votes cast at the election, and that place was declared the permanent county seat.

The cause was submitted to this court without briefs, therefore we do not know the grounds upon which the appellaiit relies for a reversal of the judgment. The issue raised by the pleadings, and tried by the district court, waa purely one of fact, and that is, which place received a majority of the legal votes cast for the location of the county seat. We are unable to review its findings for the reason the record before us contains no bill of exceptions. It will be presumed, in the absence of a showing to the contrary, that the evidence was sufficient to support the judgment. The appellant having failed to file a brief pointing out any ■error, and no error being apparent, the judgment is

Affirmed.

The other judges concur.