Butler v. McMillen

1. Trial — When to he Concluded. A trial should be completed, so far at least as the introduction of testimony is concerned, at the term at which it is commenced. 2.--Effect of Continuance before Trial Completed. Where a trial has been commenced at one term, the testimony of the plaintiff and part of that of the defendant introduced, and then the trial stopped by reason of the close of the term, and the case continued from term to term till the third ensuing term, and at such third term the trial is resumed, over the objection of the defendant, and the defendant concludes his testimony, and there is nothing further offered except evidence in rebuttal, held, that a finding supported by the testimony offered at the last term would not • be disturbed, nor could any inquiry be made at the instance of the plaintiff into errors alleged to have taken place in the rulings of the court on the trial at the first term.

Error from Neosho District Court. Injunction, brought by Butler (under authority of § 5, ch. 79, laws of 1871,) to enjoin McMillen from removing his office of county clerk, and the records thereof, from Osage Mission to Erie. The county-seat had been duly located at Osage Mission, and the county offices were there kept and held. An election was held March 26th 1872 for the purpose of relocating the county-seat. The board of' county commissioners canvassed the vote, and caused proclamation thereof, showing that 3391 votes had been cast, of which 1712 were in favor of Erie, and 1679 were in favor of Osage Mission, and determined that the county-seat by a majority of 33 votes was located at Erie. Butler in his petition for an injunction alleged that said election was void, claiming, first, that the petition for the election was fraudulent, and did not contain names of electors equal to three-fifths the whole number of electors in said county as shown by the last registration made by the assessors and on file in the county clerk’s office, as provided by the act “ for the registration of all adult persons in each county,” (ch. 86, Gen. Stat., 894; §4 of ch. 26, Gen. Stat., 297;) second, that no valid election was held in Erie precinct. Regarding the first objection, Butler alleged that of the pretended signatures to the blection-petition more than six hundred in the aggregate were names of fictitious persons, minors, and non-residents, and names of resident electors signed thereto without their knowledge or consent. Respecting the election held at Erie precinct Butler alleged that before the polls opened 83 fictitious names were placed on the poll-books, and a ’corresponding number of spurious ballots placed in the ballot-box; that 259 votes only were actually polled, (of which fifty were cast by minors and non-residents,) making the whole number at the closing of the polls (including said 83 spurious votes) 342, of which the election-board canvassed 337 as cast for Erie and 5 for Osage Mission; that afterward the poll-books and returns for said precinct were destroyed by the election-board of Erie, and that said board manufactured new and spurious poll-books and returns showing that 595 votes were cast at Erie precinct, (of which 590 were for Erie and 5 for Osage Mission;) that these 595 votes so fraudulently returned from Erie were canvassed by the county board, and said 590 included in the number (1712) canvassed and allowed in favor of Erie for the county-seat. MoMillen answered, denying the averments of the petition, and alleging that illegal and fraudulent votes were cast at Osage Mission, and other precincts, and canvassed for and in favor of Osage Mission for the county-seat. The trial commenced on the 23d of April 1872, (at the April Term of the district court,) and continued through eleven days, until the 4th of May, when the trial was continued until the next term. The trial was resumed at the April Term 1873, when fifteen days more were occupied in taking testimony, and then the court took the ease under advisement until the next term. More than fifty witnesses were sworn and examined. No testimony was offered in regard to the petition for the -election, but the evidence on both sides was mainly in regard to the alleged frauds at Erie precinct, and alleged illegal and fraudulent voting at Osage Mission and other precincts. Eive witnesses (citizens of Osage Mission) testified that they were present when the polls were closed at Erie and proclamation .of the result of the election there was made; that there were only 342 names on the poll-books, as numbered, and that the ballots were taken from the ballot-box and counted in their presence, and were 342 in number. One of the clerks of said election, called by defendant, testified — “At the time the polls closed the proclamation made was, that the polls of that election was now closed. I did not ' hear anything said with regard to the votes cast. After the announcement that the polls were closed they commenced counting out the votes. They continued to count until they got through. Don’t know how long it was. Stopped counting two or three times, a little while at a time. Think Layng, Quinlan, and other Osage Mission men left about 9 o’clock; may be not so late. It was before we had finished counting the votes, perhaps three-quarters of an hour. Don’t know why they left at that time. We had between 300 and 400 votes counted out when they left. Think there was about the same number counted out when they left that we had numbered on the poll-books. About the time the Osage Mission men left, G. P. Dutton (of the judges of election) remarked to the house that the whole number of votes cast was 342, and remarked that we would like to have the room, and they (the Osage Mission men) lit out. That (342 votes) was not the true number. I knew they were not all out. Don’t know why he (Dutton) did it; 342 may have been the last number that had been set down at that time. Immediately after those men left the house we took a little rest, and then commenced counting out again. I mean we recommenced counting out the balance of the ballots that were in the box; commenced counting out of the same box we had been using all day. The box was open while they were taking the ballots out. Before the Mission men went away the board did not want the room cleared, or at least the board said nothing about wanting it cleared. The Mission men gave them no time to say anything about their remaining longer if they wanted to. At the time Dutton said the whole number of votes cast was 342 we had not numbered all the names that were on the poll-books. None of the poll-books was in public view. They were not in public view all the time we were numbering them. They were in separate sheets. The sheets that we were numbering could have been seen by those in the room, at least by those standing close by.' We had sheets with names on them that were underneath the ones we were numbering. We kept them out of sight that way until the men from the Mission left. We did it simply because we knew that if the Mission men knew how many votes we polled they would poll four times as many in order to beat us. We had a couple of large blotting papers that we used that we placed on top of our poll-books ; kept one above and one below my hand. When we filled a sheet would place it underneath the pile from which we were using. * * * I don’t know what part of the page the number “342” was. The number may have been halfway down a page when the polls were closed. When the Mission men left I don’t remember whether we had numbered all the names that appeared in their sight or not. We stopped counting because one of the judges said they were all counted out. I did know better than that at the time. I said something about it not being correct a little while afterward; think I asked him what he called out that number for, or something to that effect. He said it would not do to let those Mission men know how many were polled, for if we did they would go down and raise their count enough to beat us.” Considerable testimony was given by the defense for the purpose of showing that the Osage Mission party had used money improperly to influence voters in favor of Osage Mission. One witness testified that at the first election (at which there was no choice) he had voted for Erie, but afterward sold his vote to the Missionites for two-dollars-and-a-half and at the second election had voted for Osage Mission. At the July Term 1873 the court made its findings of fact and conclusions of law. Its findings were, that the election • at Erie was legal, that the county commissioners rightly canvassed and counted the vote from that precinct as returned, and that Erie had received a majority of the legal votes cast;* and its conclusion was, that plaintiff Butler was not entitled to the relief demanded. Judgment was entered in favor of the defendant, and the plaintiff brings the case here on error.