Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1898-02-26

y o. Itc
Joshua Musgrave vs.. John F. Barclay.
Error from Trego county; reversed.
Opinion Per Curium.
This was contest over the office of
county commissioner. Upon the face
of the returns tile plaintiff in error
received a majority of the votes. The
in error filed statement
and served Il notice of contest. There
after he agreed with the plaintiff in
errorsto dismiss the contest proceed
ing in consideration of the payment
by plaintiff in error of the costs in
Cured to certain date. The parties
signed stipulation for dismissal, and
the defendant in error, the confession.
also wrote out a motion of dismissal.
Afterwards upon the calling of the
case for trial before the contest court
the defendant in error moved for
leave to withdraw the stipulation of
dismissal tor reason: that his yeri-
fed statement of contest demands
that an investigation be had; that he
was induced to sign under miSapDre-
henSi0n of the facts" The plaintiff
in error the conteStee, resisted the
motion TO withdraw the stipulation of
dismissal and Insisted upon the dis
missal OF the contest. In support of
his contention he gave in evidence
ne negotiations between the parties
which eliminated in the agreement
TO dismiss. These negotiations APP
pear from his statement to have been
fair and honorable. The defendant
in error gave no reason for desiring TO
withdraw the stipulation and to pro-
coed with contest other than what
was above stated in his motion for
withdrawal. Under what miSappre-
hension of the facts he was induced
LOT n f.,,,.,
was not in any wise made to appear.
Neither was the reason for the inveS-
tigatiOn of the matters alleged in his
statement of contest made to appear
in any other way than by the state
ment Itself. TIE contest court SuS-
tained the application of the contest
or, tie defendant in error, for leave
to Withdraw the stipulation of dis
miSSal. The contest was proceeded
with resulting in findings and Il judy
ment for the confession. Upon pro-
ceedingS in error to the district court
this judgment was affirmed, and from
the judgment OF ai1irmance error is
prosecuted to this court. Under the
facts disclosed by the record no good
+ sason existed for refusing to dismiss
he contest proceeding nor for allow
ing the confession to Withdraw his
stipulation for dismissal. The con
tesUor should have been required to
support of his motion for leave to
Withdraw the stipulation of dismissal.
While it is true the subject matter of
the contest was the title to a public
Office, a matter in which the public is
Interested as we'll as the claimants to
Slcn Office, yet the public interest in
S Icn case is not such as to justify a
refusal OF the right to dismiss upon
re agreement of the contrasting
C .dimantS- The public rights were
not concluded by the agreement of
tie parties, nor were they concluded
by the Judgment finally rendered.
Inc public through its Official repre-
entaUive would be still at liberty to
bring an action to test the right of
ie occupant of the Office. Objection
is made to the consideration Of the
claim OF error in question because the
motion and stipulation to dismiss are
not set out in the bill or exceptions.
out are presented only in the form of
-copies, along with other papers com
posing the Transcript, and it is said
lat they do not properly cOnSti-
Uute a part of the record but that 20
bring them to the notice of the court
tIey should be Incorporated in the
bit of exceptions. full statement
o. the contests and object of these pa
pars is Incorporated in the bill of eX-
options, and this is sufficient. Other
aims of error are made. We do not
deem it necessary to notice any of
them except one in which it is urged
tslat the confession forfeited his right
20 the office by failing to file within
proper time Il statement of his cleo
tion expenses. \ sufficient answer to
this IS that the confession did not con-
test in his capacity as defeated candi-
date alone, but in his right as an cleo
tor as well. Whether the statute
cited as disabling him from carrying
on the contest because of his failure
to file the statement mentioned, real
ly does 50 is unnecessary tOdetermine.
Assuming that it did he nevertheless
retained his rights as an eiector. The
judgment of the court below is re-
versed with directions to proceed in
accordance with this opinion.
We also publish the opinion OF the
court in the Musgrave case. Our
readers will notice that the case is
not yet closed, that Musgrave is not
yet commissioner. There is nothing
in the opinion intimating that he was
elected or that Barclay was not
elected. The Independent refers its
readers to the dissenting opinion of