#### J. F. Mentzer, Contestant v. W. M. Davis, Incumbent, Appellant.

Kleetion Contests appeal t.o district court. Notice of appeal from court of contest to district court is not premature, where given 1 after the judges had announced their, decision, though before it '• was reduced to writing and filed.

*529Bond on appeal. The statute not expressly requiring bond on appeal from court of contest to the district court, and no stay . 2 of proceeding being seught, bond need not be given.

Ballots: *Admissibility of evidence.*Ballots cast in a certain precinct not having been returned by the judges as voted, but having after-3 wards been gathered up from the building, and returned on the *4*second day after the election, should not be counted on a contest.

¡Preservation: *Review of admission in evidence by trial judge.*Where ballots were folded, strung on wires, sealed, placed in boxes, and in this condition delivered to the county auditor, and placed in his vault and there kept till placed by him in a safe, to which he alone had a key, decision of the trial judge that the ballots were properly preserved and admissible on a contest will not be disturbed, though the vault was entered by others 3 than the officials, the auditor or his deputy always being present, and the ballots being kept in view of the auditor from his table, 4 though the night before they were placed in the safe the vault was found unlocked shortly after the auditor left in the evening, and the sack containing the ballots from one precinct was after-wards found ripped at the bottom, the evidence tending strongly to show that this was due to defective stitching or the unraveling of the threads.

*Appeal from Marion District Gourt.-*— IíoN. A. W. Wilkin-sow, Judge.

Tuesday, October 24, 1899.

Tins is a contest over the right to hold the office of •sheriff of Marion county. The board of supervisors, acting as a canvassing board, found that the incumbent had a plurality of one vote over the contestant. Contestant •appealed, and the court of contest, authorized by statute, found that he (contestant) was elected. Incumbent served notice of appeal to the district court, but gave no bond. The •district court, after hearing all the evidence, directed a verdict for contestant, and incumbent *appeals.*

Affirmed.

*Hays & Amos*for appellant.

*Henderson é Berry*and Kinhead, *Mentzer & Granger*for appellee.

*530Deemer, J.

Appellee says we have no jurisdiction of tbe case (1) because no proper notice of appeal was given-from the decision of the court of contest; (2) because incumbent gave no- bond after serving his notice of appeal; and (3) because incumbent consented to and requested the finding made by the court of contest.

In support of the first point, he says the notice of appeal was served before the decision of the court of contest was announced. There is no- doubt that the notice was 1 served before any formal entry of judgment was made by the court. But we think the trial court was justified in finding that the judges had- in fact announced their decision before the notice was served. All that was done after that time was to reduce that decision to writing and file it with the proper authorities. In other words, the decision had been made before the appeal was taken, but the written evidence of that decision had not been made. The appeal was not prematurely taken. *McIntosh v. Livingston,*41 Iowa, 219; Freeman Judgments, section 38; *Genella v. Relyea,*32 Cal., 159; *Kehoe v. Blethen,*10 Nev. 445.

We do not think there is such evidence of consent to the judgment rendered by the court of contest as to justify us in holding that the incumbent was not aggrieved by the finding.

Regarding the failure to give bond, the statute does-not, in express terms, require it; and, as no stay of proceedings is sought, we see no reason for holding that one-2 should be given. *Robertson v. Coal Co.,*27 Iowa, 245; *Bremer County Bank v. Bremer County,*42 Iowa, 397. Indeed, the statute (Code, section 1222) clearly indicates that a bond is not required, unless stay of execution is sought.

II. On the merits of the case, it is contended that the court was in error in admitting in evidence, the ballots cast at the election and in refusing to submit certain special *531interrogatories to tbe jury. Virtually, there is but one question foa* solution, and that is, were the ballots so preserved, 3 after they were deposited by the electors, as that the court was justified in admitting them in evidence ? The rule as to the preservation and care of ballots cast by the electors is well understood. Quoting from McCrary Election, p. 349, we said in *Davenport v. Olerich,*104 Iowa, 196: “Before the ballots should be allowed in evidence to-overturn the official count and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law; that they have not been exposed to the public or handled by unauthorized persons; and that no opportunity has been given for tampering with them,” — 7-' citing a number of cases. We further said in that case “that the onus is on him who would discredit the official count, before resorting to the ballots as the best evidence of who has been elected, to show that these have been preserved with that care which precludes the suspicion of having been tampered with and the opportunity of alteration or change.” O.f' course, this does not mean that they must be proven genuine beyond all suspicion, however groundless, nor that there is no possibility that they might have been tampered with. To adopt such a rule, would be to exclude the ballots entirely; for we can hardly imagine a case where they might not be tampered with. No safe is so secure as that it may not be unlocked, and no vault so perfect- that it may not be entered. What is meant is that they shall not be so exposed to the reach of unauthorized persons as to afford a reasonable possibility of their having been changed or tampered with.

The statutory requirements as to the preservation of ballots after they have been cast and counted by the judges-of election are fully set out in- the *Davenport*Case, and need’ not be repeated. With one exception, the ballots in this case were returned to the county auditor within twenty-four hours after the polls closed. Those cast in what is known as “Bussey Precinct” were not returned until the second *532'day after the election. The ballots were folded, strung on wire, and placed in sacks. Tbe sacks were then sealed, and 'placed in boxes, and in this condition were delivered to the county auditor. These boxes were placed in the auditor’s 'vault in the court house, where they remained until placed in an iron safe, as hereinafter described. This vault is about tWenty by thirty feet in dimensions, and, as we understand it, extends from the bottom of the first, to- the top of the second, floor of the court house. The lower part of it is called the sub-vault, and is connected with the upper part by an iron stairway. The upper and main door to the vault is in the south side of the auditor’s office. It is an iron door, and is supplied with a combination lock. The upper floor is used for the keeping of books and papers belonging to the office, and is supplied with a table and some chairs. Both the 'upper and lower vaults have several windows. Prior to' the time the ballots were deposited with the auditor, the public generally had access to the vault, and they may have had freedom of access after that time, but after the ballots were returned to the auditor no person was permitted to' be in the vault unless the auditor or his deputy was present. When •the ballots were returned, the auditor placed them in the upper vault, and in such position as to be at all times within his range of vision from the table where he did his work. The auditor and his deputy were the only persons, we think, who had the combinations to the locks on the vault doors, although there is some evidence tending to show that the contestant once had them. If he did, he got them in virtue of his office as sheriff, long before the election was held. A few days after the election, the auditor was at his office1, engaged in official labor, until about 9 :30 o’clock in the evening, when he left for home. The janitor of the building entered his office shortly thereafter, on his nightly round, and discovered that the vault door was closed, but not locked. ■At or about that time the contestant, who then held the office of sheriff, appeared at the front door of the auditor’s *533office in search of the janitor. The janitor informed him that the vault door was unlocked, and he immediately directed the janitor to close and lock it. Contestant did not go into the auditor’s office, but immediately left, and went about his business. The next morning the janitor, informed the auditor about finding the vault door unlocked, and the auditor thereupon procured a sheet-iron safe, and, after having removed the ballots from the box, placed them in the safe, to which he alone .carried the key, where they were kept until the hearing before the court of contest. Upon that hearing it was found that the sack containing the ballots from Summit township was torn or ripped at the_ bottom, the rent being from three to six inches in length, and upon a recount it was found that there were very material changes between the result as found on the count and the returns made by the judges of election. The ballots from Bussey township were not returned, as we have said, until the second day after the election. By mistake, the judges did not return the ballots as voted. They were afterwards gathered up from the building in which the election had been held, and returned as before stated.

We do not think these votes should be counted. It is not necessary to determine whether or not the votes from Summit township should be counted; for, if we should reject the ballots from both these precincts, it would not affect the result, as contestant would still have a plurality. The only question is whether or not, in view of these facts, there should be a. recount of any of the ballots. Appellaint contends that there was .such opportunity for tampering with the ballots by unauthorized persons, as to afford a reasonable probability of their having been tampered with and changed, and that the integrity of the ballots has been so shaken as that they should not be received in evidence. He points to the rent in the sack as strong corroborative evidence that they were in fact tampered with, and says that the court erred in directing a verdict for contestant. His counsel prA *534s&nts a learned argument in support of tbe position, but we are not prepared -to assent to tbe conclusion. Tbe evidence tends strongly to> show that tbe bole in tbe sack in which ■Summit township' ballots were kept was due to defective stitching or to a raveling out of tbe 'threads, and we are abundantly satisfied that none of tbe ballots could have been tampered with through -the rent in tbe sack. Again, the trial court bad tbe sack itself, as well as all tbe other evidence, before him, and we are not disposed to interfere with Ms conclusion that tbe ballots were not tampered with. Tbe *Davenport Qase*is very different in its facts, as an examination will show; and in that case tbe trial court rejected the ballots, after bearing all tbe evidence. In this case be admitted them in evidence, and directed a verdict for tbe 4 contestant. If tbe trial court was right in admitting, tbe evidence, be was also right in directing tbe ver-lict; for, if a recount was proper, there is no1 question nf contestant’s election. If right in directing a verdict, then be was also right in refusing to submit tbe special interrogatories submitted by incumbent, for there was nothing for tbe jury to consider. Primarily, it was for tbe court to determine tbe admissibility of tbe ballots as evidence. It concluded they were admissible, and we do not feel justified in disturbing tbe ruling: No prejudicial error appears,, and tbe judgment is affirmed.

GRANGER, J., taking no part.