Le Claire v. Wells

Kellam, J. Appellant and respondent were rival candidates for the office of state’s attorney in and for Edmunds county. Appellant received the certificate of election, and respondent instituted a contest. Upon trial the circuit court, upon an examination and recount of the ballots, found that respondent had received a majority of the votes cast, and adjudged him entitled to the office. From such judgment this appeal is taken. Respondent contends at the outset that this court cannot examine the questions raised by the assignment of errors, for the reason that no motion for anew trial was made in the court below. In this, we think, respondent is wrong. A motion for a new trial is only necessary where the question is the sufficiency of the evidence to sustain a finding of fact of the court or jury. Here the ballots themselves were before the court, and it had only to declare their legal effect. No question of fact was involved, and the court decided the effect of each of these ballots just as it would construe and determine the legal effect of any other printed or writ 428 ten instrument before it. If such decision is wrong, it is an error of law, that may be reviewed without a motion for a new trial. Mercantile Co. v. Faris, 58 N. W. 813, 5 S. D. 348. Upon the merits, every question raised is discussed and decided either in Vallier v. Brakke (S. D.) 64 N. W. 180, or in Parmley v. Healy (S. D.) 64 N. W. 186. Applying the rules promulgated in these cases to the facts in this sustains the judgment of the circuit court, and the same is affirmed. All the judges concur.