ARR:] DODD V. • GOWER: 717 DODD V. GOWER. 1-3150
Opinion delivered July 3, 1933. 1. ELECTIONS—PRESUMPTION. —Th e presumption that a, certificate of . election commissioners was correct was overcome by undisputed testimony that the certificate was based on tally sheets which had been tamperecl.with. - . 2. ELECTIONS=INTE , G RITY OF . BALLOTS. In an election contest, the court, after discoverini that the ballots had 'been tampered with,. • should prO'ceed to ascertain from seCondary evidence the nuinber of votes each candidate' re . ceived. • 3. ELECTIONS—TRIAL OF- CONTESTS.—Election contests, on appeals • from the county, court, are tried in the circuit court de novo, and the result ascertained from the best admissible testimony • available. . Appeal—from Stone Circuit , Court; S. .M..-Bone, Judge ;,reversed.. George W. Parks, J. Paul Ward and.Ben B. Wil-. liamson, for appellant... • • • ,W.. _(). Edmovdson and . Coleman & Reeder; for appellee. • .. •, . . • • HUMPHREYS, -J. , This is an appeal from- a judgment.' of the circuit court of Stone County dismissing the . election contest of appellant' for the -office. of assessor "of • Stone County. , The contest was heard by the county court of' said county upon the pleadings , and-testimony adduced before him, -from which he found that, after the returns had been delivered to the election commissioners, and -before they had certified appellee the duly elected assessor at the regular NoveMber.election, the talley sheets in the, townships of Turkey. Creek,. Richards, Pranklin..land: Washington were erased, changed ,and. altered so . as. to add '55. more votes tw appellee than' actually received iby him in said four townships and to take from' appellant 35 votes less than received by him . in said townships; and that the judges and clerks in Sylamore township failed to count certain votes cast for appellant. Based upon these findings, the court found and declared that appellant. had carried the county by a ma-
718 DODD V. GOWER. [187 jority of 25 votes and entered a-judgment-that appellant was the duly elected tax assessor of Stone County, from which judgment appellee prosecuted an appeal to the circuit court of Stone. County, where the cause was heard de novo on the pleadings filed and depositions, introduced in the county court. After the depositions had been read, the circuit court ordered the ballots brought into court. During the interval between the two trials, it was discovered that the ballots had been kept in the vault of the circuit ,and county clerk, where any one wh8 desired might enter in the daytime, and that the ballots had been broken into. The court thereupon declared that the ballots had lost their integrity and could not be used in evidence, and that he must rely on the certificate of the election commissioners, holding that it was prima facie correct, and that such presumption had not been overcome by sufficient evidence. The undisputed evidence in the record reveals that the certificate of the election commissioners was made up from the talley sheets of the various townships in Stone County, and that the talley sheets in four of the townships had been tampered with between the time they had been delivered to the election commissioners and before the time the count and certification was made. The prima facie effect of the certificate was overcome by the undisputed testimony that it was based upon talley sheets, the integrity of which had been destroyed. After finding that the integrity of the ballots in the four townships had been destroyed, the court should have proceeded to ascertain from secondary evidence the number of votes each received in the four townships in question. We refer to such evidence as the talley sheets; poll books and certificates in the hands of the judges and clerks which had not been tampered with and any other evidence tending to show what number of votes the contestant and contestee had received in said townships. The court sat as a jury in this case, and was trying the case de novo, and it was his duty to try the case and
declare the result with the best admissible testimony available. This court is not trying the case de 'novo, as it is not an equitable proceeding. The judgment is therefore reversed, and the cause is remanded with directions to the trial' court to proceed with the hearing in accordance with this opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.