Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1897-05-01


At the general election of 1896, the
parties to this action were opposing
candidates fOl the officer of Commits
SiOner of the First district of Trego
county. The plaintiff in error was
declared elected by the board of can
vaSSerS by d majority of two votes
and a certificate of election was is
sued to him by the county clerk.
Within twenty days after the votes
were canvaSSed, the defendant in err
ror filed in the proper office state
ment of his intention to contest the
election, alleging that five illegal
votes cast by H. III. Artz, j. III. For
dice, E. K. Westover, G.. 5. Hunt and
Henry Sherry respectively, had been
count ed for MuSgrave. On the 18th
day of December. 1896, the Probate
Judge selected two associates to act
with him as judges of a contest court
and fixed the I'd day of January, 1897,
as the day for the trial of the case.
The court made findings of fact and
conclusions of law, holding that four
of the votes counted for the contestee,
viz: Those of I'll. I'll. ArtZ, j. III. For
dice, E. X. WeStoyer and Henry Sher-
ry were illegal, and that the contest
or received majority of two of the
legal votes cast, and rendered judg-
ment in his favor. The cOnteStee eX-
cepted to numerous rulings, to some
OF the findings, and to the Judgment
of the contest court, and brings this
case here by petition in error for re-
view.
The court was met at the outset
with motion to quash the summons
in error This summons is peculiarly
drawn and contains much that is not
required by Statute, but as it appears
to include the necessary statements,
the motion has been Overruled. The
Sutficiency of the certificate of the
county clerk to the transcript was
1,nl Inr RI L I'll
that on the authority of the case of
Cook VS.. ChalliS, 55th Kansas, 1863,
the objections of the defendant in err
ror in that regard were we'll taken,
but after the argument of the case on
its merits the clerk was permitted to
attach an amended certificate in
which no defect has been discovered.
The case, as brought to the attention
of this court by the record and argu-
mentS of counsel, will therefore be
considered on its merits and the
numerous alleged errors noticed in
the order of their occurrence in the
contest court. Before proceeding to
do this 1T is perhaps proper to observe
that some OF the proceedings alleged
to have been had on the trial and re-
ferred to in the argument of counsel
nave not beenprOperly preserved in the
record and should not now be consid-
cred. The general rules that all mat
tiers which do not constitute d part of
the record at common law or by Stat
ute, that motions of various kindSmade
during the trial of case, and atfida-
Wits used on the hearing of such mo-
lions must, in order to be reviewed
on appeal, be brought up by bill of
exceptions, laid down in I'd, American
and English Encyclopedia of Pleading
and Practice at Pages 26S, 273 ct seq
Trials Paragraphs 2773, 2774, 2775 and
2ll6, and the cases of AttSchiel VS..
Smith 9th Kansas, Page 90, BackuS
vs.. Clark 1, Kan. III, a. & n. r. r.
Co. vs.. Wagner 10Th, Kan. 800 and
State VS.. Carr 37th Kan. 421, have in
several instances been overlooked or
disregarded, to which reference will
be hereinafter made.
The first ruling complained of is
the refusal of the contest court to
sustain the contestees motion to dis
miss the case for want of jurisdiction.
After this motion had been filed the
confession filed motion for leave to
withdraw a certain stipulation to dis
miss the case for the alleged reasons
that he had been induced to sign the
same under misrepresentation of the
facts, and that his verified statement
of contest demanded an investigation.
The stipulation in question is not in
corporated in the bill of exceptions
and, although what counsel claims is
copy of it appears elsewhere in the
the authorities already cited that it
is not now properly before this Court.
That question, however. is immaterial
at this time because the court per-
mitted the stipulation to be with
draw, and its action in so doing is
neither assigned as error, nor can it
now be reviewed. because, o far as
the record discloseS, the conteStee
neither objected nor excepted to it at
the time. The court then heard and
overruled the motion to dismiss the
case for want of Jurisdiction. If the
oral argument of counsel is under
stood correctly, he claims that this
was error. because, in the first
place, the notice of contest not only
fails to contain "a brief statement of
the causes of contest as required by
law, but also contains other grounds
than those set forth in the contestor'S
verified statement, therefore con-
ferred no jurisdiction of the per-
son of the cOnteStee upon the trial
court. and secondly that the filing of
the stipulation to dismiss, above re-
ferred to, Invested the court of any
Jurisdiction that it previously might