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Windes v. Nelson

60 S.W. 129, 159 Mo. 51, 1900 Mo. LEXIS 202
CourtSupreme Court of Missouri
DecidedDecember 18, 1900
StatusPublished
Cited by4 cases

This text of 60 S.W. 129 (Windes v. Nelson) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Windes v. Nelson, 60 S.W. 129, 159 Mo. 51, 1900 Mo. LEXIS 202 (Mo. 1900).

Opinion

MARSHALL, J".

This is a contested election case for the office of clerk of the county court of Oamden county, growing out of the election held in 1898.

The contestee was the incumbent of that office, and was the nominee of the Republican party for' re-election to that office, and the contestant was the nominee of the Democratic party. The returns of the judges and clerks of election [57]*57showed that the contestee was elected by a majority of ten votes; that is, that contestant received 1179 votes, contestee received 1189 votes, and that there were 54 other votes cast at election but were not cast for either party, making a total of 2422 votes. The contestee issued to himself a certificate of election. On the 28th of November, 1898, the contestant served on the contestee a notice of contest. On the 8th of December,. 1898, the contestee petitioned the clerk of the circuit court to issue an order on the contestee, himself, the clerk of the county court, in whose custody the ballots, returns, tally sheets, poll books, etc., were, for a recount of the ballots. The circuit clerk issued the order, the contestee notified the contestant that the recount would be had on December 15, 1898. But it was postponed from time to time until April 12, 1899, when it was begun in the presence of the parties and their attorneys, and the deputy county clerk, who was a son of the contestee, with the result that it appeared that the contestee had been elected by a majority of* 98 votes, instead of ten, as shown by the returns of the judges ■and clerks of election. At the February term, 1899, the contestant procured the venue to be changed from the circuit court of Camden county to the circuit court of Greene county. On the 22d> of June, 1899, the contestant filed an amended notice of contest, the contestee filed an answer thereto, and on the 15th of September, 1899, the contestant filed a reply. On the 12th of October, 1899, on motion of contestant, the circuit court of Greene county ordered a recount, which was conducted as before, and resulted in showing that the contestee had received a majority of 91 votes; that -is, that the contestee received 1211 votes, the contestant received 1120 votes, there were 91 votes cast at the election but neither party hereto was voted for, making a total of 2422 votes.

On the 11th of November, 1899, the contestant filed a [58]*58second amended notice of contest, claiming that lie bad been elected and assigning as ground of contest, that 118 persons (whose names were set out) had voted- for the contestee; when, for various reasons assigned, they were not entitled to vote. The contestee answered and claimed that 131 persons (whose names were set out) had voted for contestant, when, for various reasons assigned, they were not entitled to vote; that'45 votes were cast for Harrison H. Windes,’ the nominee of the People’s party for said office, and improperly counted for the contestant; that the entire vote of Mack’s Creek precinct was illegal and should be rejected, because the judges and clerks of election did not give to each voter a copy of each and all of the official ballots furnished them, but gave to each voter only a copy of the ballot containing the nominees of the political party the judges knew or believed the voter belonged to or such as the voter indicated that he preferred, and that the voters did not retire alone to the booth and prepare their ballots; but were permitted by the judges to prepare and cast their ballots without doing so. On the 15th of November, 1899, the contestant filed a reply in which he denied that the votes cast at the election were properly counted and canvassed by judges and clerks; averred that a large number of votes actually cast for contestant were, by mistake, not counted for him by the judges, which if properly counted would have given contestant a majority of several hundred votes; “and that said contestee, well knowing said fact, after the poll books and ballots bad been delivered into bis custody as county clerk, for the purpose of preventing the discovery of such mistake, mutilated and changed the ballots in bis possession so’.tbat when a recount was bad under this proceeding it became impossible to determine precisely the number of votes- actually cast for him and contestee respectively at said general election. And the con[59]*59testant further states that the errors charged by the contestee in counting the votes by the judges and clerks of election, as stated in his notice of contest, and as appears upon the face of the ballots on the recount, were mot the actual ballots cast by the voters at said general election, but the said ballots were changed after they were received into the custody of the contestee as said county clerk, and were made in his interest to defeat the rights of the contestant herein.”

The case was tried in the circuit court in November, 1899.

The difference between the vote as shown by the returns of the judges and clerks and as shown upon the second recount in October, 1899, has been compressed into tabular form by counsel for contestant, and is not controverted by counsel for contestee, and is as follows:

[60]

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Related

Clark v. City of Trenton
591 S.W.2d 257 (Missouri Court of Appeals, 1979)
Johnson v. Board of Canvassers
136 S.E. 772 (West Virginia Supreme Court, 1927)
State ex rel. Von Stade v. Taylor
119 S.W. 373 (Supreme Court of Missouri, 1909)
Bradbury v. Kerns
91 S.W. 437 (Missouri Court of Appeals, 1905)

Cite This Page — Counsel Stack

Bluebook (online)
60 S.W. 129, 159 Mo. 51, 1900 Mo. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/windes-v-nelson-mo-1900.