Nickols v. Ragsdale

Ray, J. — The appellant filed with the county auditor, within ten days after the appellee had been declared elected sheriff of Gibson county, a statement specifying the grounds of contest of said election, verified by his affidavit. On the hearing before the commissioners, a motion to dismiss the proceedings was sustained, and upon appeal to the Circuit Court, the appellee successfully renewed the motion. It is insisted in this court that the statement was not sufficient, because while it disclosed the fact that the ground of contest was that the appellee had received illegal votes, it did not appear that the number of such illegal votes would, upon being taken from the total number of votes [132] cast for said appellee, “ reduce the number of his legal votes below the number given to some other person.” 1 G. & H. § 15, p. 318. The averment is that the appellee “received 1,719 votes, and that one Kirkman received 1,716 votes.” It is also alleged that said “ Kirkman is entitled to be declared elected to said office, and would have been but for the fraudulent and illegal votes cast at said election for said .James M. Ragsclale, in this to-wit: that divers persons, whose names are to the contestor unknown, who were not qualified votei’s of said county, axxd xxot entitled to vote at said election for said office of sheriff, did, on the day of said election, in the townships of Parker, White River, Washington, Wabash, Montgomery, Johnson, Barton and Columbia, cast illegal votes for the said James M. Ragsdale for the office of sheriff of said county. And the contestor further says, that had said illegal votes xiot been given for said James M. Ragsdale, the said Joseph J. Kirkman would have been duly elected sheriff of said county,” A. C. Donald and W. M. Land, for appellant. C. Denby and O. M. Welborn, for appellee. "We thiixk the avex’ment that Kirkman received 1,716 votes, is in effect an allegation that he received that number of legal votes, it appearing that they were cast at a legal election, axxd received and counted as legal votes by the px’oper officers, and xxo question as to their legality being presented by the statemexxt. As there were but three more votes couxxted for appellee than were received by Kirkman, and it is averred that illegal votes were cast for the appellee in eight townships, it sufficiently appears that the illegal votes so x’eeeived would, upon being taken from the appellee, have reduced the number of votes received by him below the number received by Kirkman. As this is the only ground urged by the appellee in support of the ruling of the court below, axxd as we think that ruling ex’roneous, the judgment will be reversed, with costs, and the cause remanded, with directions to ovexTule the motioix to dismiss the proceedings.