#### Morgan v. Sparkman.

(Decided March 18, 1911.)

Appeal from Leslie Circuit Court.

1. Contested Elections — Integrity of Ballots.- — The ballots, when their integrity is established, are the best evidence as to the result of an election, and where the bag containing the ballots themselves show they have not been tampered with, will not be rejected. merely because of some chisel marks on the box, it not appearing that the marks were made after the election, and the box otherwise indicating-, that it had not been opened.

*282... Pleading — Omission From Petition Supplied by Answer. — A neces: sary averment being omitted from the petition but having been supplied by the answer, the defect is cured, and. wili' be disregarded on appeal.

HAZELRIGG & HAZELRIGG and T. G. LEWIS for appellant.

‘ GLEON K. CALVERT, JAMES G. BEGLEY, HIRAM. M. .BROCK and R. B. ROBERTS .for. appellee.

Opinion of the Couet bst

Chief Justice’ Hobson

Reversing.

At the November election-19.09,. W. R. Sparkman, and Joe Morgan were opposing candidates for the office of sheriff of Leslie- -copnty, Sparkman- being the Republican nominee and Morgan an independent candidate. According to the returns made by the election officers, Sparkman received 129 votes more than Morgan, and was given .a certificate of election by the election commissioners. Morgan filed this snit to contest the election. He alleged that in Ciitshin precinct according to the returns- of the election officers Sparkman received 172 votes and lie 33 votes, when in truth and in fact he received in that precinct more than 120 votes and Spark-man more than *87*less votes than were counted for-him. He asked a recount of the ballots in. that percinct. Sparkman filed an answer in which he denied -the allegations of the petition and alleged that the ballot box of Cutshin precinct had since the election been opened by some one; that the box had not been securely kept by the clerk, and that opportunity had been offered for fraudulently tampering with the ballots. Proof was taken and on a hearing of the case, the circuit court refused to open the ballot box of Cutshin precinct- and recount the ballots. Morgan’s petition was accordingly dismissed and he appealed to this court. The ballot box referred to was by appropriate writ brought to this court. On a hearing of the case this court concluded the marks on the outside of the box were not sufficient ip show that the ballots had been tampered with, and in the présence of counsel, the box was opened. The sack in which the ballots were placed by the election officers was found sealed, and in good condition, -and the sack having been opened, the ballots were found in the condition described by the election officers. The court thereupon in the presence of counsel made a recount of the ballots which showed that Morgan had received in the precinct 123 votes, and that *2990 v-otes,-which h'adbéen cast for Morgan bad been:countT ed fon Sparkman. Morgan received a majority.-in. tbe connty-ontside of Cutsbin■■precinct, and, if tbe vote of.that precinct is-to be determined by-tbe count of tire- ballots made here, be was elected. On tbe other -band, if tbe returns made by tbe election officers are the-best evidence as to-bow tbe election, in fact resulted, Sparkman was elected.- So, tbe case comes to this, Shall tbe result of tbe election be determined by a recount of tbe ballots?-

It is insisted for tbe plaintiff that under Bailey v. Hearst, 24 R., 504; Edwards v. Logan, 24 R., 1099; Hamilton v. Young, 26 R., 447; McEuen v. Carey, 123 Ky., 536; Pace v. Reed, 128 S. W., 891, though tbe ballots are tbe best evidence, this is conditioned- strictly upon tbe fact that tbe integrity of tbe ballots is clearly- established, and that under tbe rule laid down in those cases, tbe circuit court properly refused to reopon tbe box and count tbe ballots. While there is some evidence on the side of the ballot box of tbe impress of a chisel used in an effort to pry at tbe box, these impressions are not at all satisfactory that tbe box has been opened. When tbe whole appearance of tbe box is considered they look rather like an incomplete effort to open tbe box; and there is no proof in tbe record as to when these marks were made, or that they were not there before tbe election. On the contrary, there is proof that several years ago, -there was a contested election, and that at that time several of tbe ballot boxes were forced open, and for all that appears, these marks may have been made then. We therefore concluded to open the box and see what tbe interior of tbe box indicated. Tbe interior of tbe box rather confirmed -the conclusion that tbe box baid not been opened, and this conclusion was further strengthened by the condition in which tbe bag and tbe ballots were found. Tbe bag was found sealed with tbe election seal, just as it was described by the election officers, with their names written across the paper where it was pasted, as required by tbe statute. The bag bad also on it tbe tabulation of tbe votes as kept by tbe election officers, and plainly bad not been disturbed. An inspection of tbe ballots themselves and of tbe stencil marks upon them, also satisfied us that there bad been no mutilation of tbe ballots. Tbe box bad been brought by tbe election officers and delivered to tbe county clerk, who bad put it in tbe vault, and securely kept it there, locking tbe vault *30at night but not keeping it locked in the daytime. On the whole we think the box was so kept by the clerk as to render any tampering with it very improbable, and that the appearance of the interior of the box, the bag and the ballots, with the seals thereon, are sufficient to establish the integrity of the ballots. We therefore conclude that the ballots themselves are the best evidence as to the result of the election, and that Morgan is entitled to the office.

It is insisted for the defendant that the plaintiff’s petition is defective, and that his demurrer to it which was overruled by the circuit court, should have been sustained, and to this end he has prosecuted a cross appeal. The petition does not show that Sparkman had received the certificate of election, and it is insisted that for this reason the petition is insufficient. While it is not averred in the petition in words that Sparkman had received the certificate of election, this would be the natural effect of the facts stated therein. But when the demurrer was overruled, Sparkman filed an answer, in which he affirmatively set up that he had received a certificate of election. When he so pleaded the fact, it was unnecessary for the plaintiff also to plead the fact. If the petition was defective originally, the answer made it good by pleading affirmatively the fact which had been omitted from the petition. By section 134 of the Code, it is the duty of the court at every stage of an action, to disregard every error-or defect which does not affect the substantial rights of the adverse party. No substantial right of Sparkman was prejudiced by the ruling upon the demurrer, and he, having supplied the averment which was lacking in the petition, the defect must be disregarded here, for if the could had sustained the demurrer Morgan might have amended his petition by alleging that Spark-man had received the certificate of election, and it was wholly unnecessary for him to do -this after Sparkman had filed an answer in which he set up that he had received the certificate of election.

Judgment reversed and cause remanded to the circuit court with directions to enter a judgment in favor of Morgan for the office as prayed in his petition. Spark-man will be adjudged his costs on the demurrer to the petition. Morgan will recover his costs in this court and in the circuit court except as indicated.