The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1923-06-07
Judge Belden Denies Reconsideration of Meth
cd of Allotting Votes and Denies Mo
ton for Stay of Judgment.
DEFENSE TO GO TO SUPREME COURT
With Frank Symmonds in the Office Of District Attor-
ney Counsel for Barnett viii Garry On"
to Test Right of Voters.

There will be no reconsideration of
the case of Frank Symmonds VS.. Nor
ris Barnett in the circuit court and
Frank Symmonds will continue as
district attorney of Kenosha county
under the decision rendered by Judge
Belden. This morning in circuit court
Judge Belden denied the motion of
Barnett for reconsideration of the
apportioning of the votes, and also de-
MED the motion for stay of judgment.
The case is ended so far as this court
is concerned.
1t was announced this morning, how
ever, that Morris Barnett and his coun-
sci for him will carry the case to the
supreme court, resting on their con-
tention that voters who have present
ed themselves for registration on pri-
mary day are entitled to be counted
among the legal voters and have their
ballots counted, and also on their con-
tention that where there is an appor-
tionment of the votes, it should be
done by deducting the number from
the total votes cast and not by iso-
lating two wards.
No Quarrel with Decision.
Judge Belden in his denial of the
motion for the defense points out that
new remedy was brought in at the
last moment after the trial which had
not been presented by the defense dur
ing the trial in quo warranto, and that
those proofs which had been intro
duced during the course of the trial
the court was bound to consider only
1t was expected that Judge Belden
would refuse the present motion of the
defense and there was no great sur
prise when the last decision of Judge
Belden was filed.
Judge is Piqued.
Apparently Judge Belden felt some
pique at being shouldered with the en-
tire responsibility for the course of
events which resulted in the present
situation, for he says with some
emphasis in his decision:
Courts do not prepare pleadings for
parties or prepare their cases for
trial. The function of courts is to
decide matters submitted to them as
pleadings Of the parties. If party
were permitted to have another trial
after adverse judgment, because he
then realized that his case might have
been presented differently or perhaps
more anvantageously, there would be
no end to controversies"
Judge Belden's decision, denying the
motion for a reconsideration of the
case, is given in full as follows:
"Now, after judgment entered in the
quo warranto proceedings declaring
that the defendant Morris Barnett,
unlawfully holds the office of district
attorney of Kenosha county, and that
Frank S. Symmonds was lawfully
elected thereto at the November 1922
election, and is entitled to hold said
office and exercise all its functions,
comes the defendant by his counsel
and moves the court to reconsider the
findings Of fact and conclusions of law
and for rehearing for the alleged
reason that an error was made by the
court in proportioning the number
of votes found to have been iunlaw-
fully received and for a stay pend
ing the rehearing.
Reviews the Contest.
During the tendency of the action
in varying phases for four months and
after exhaustive consideration of the
matter presented, the court found that
a large number of votes were illegally
received and canvassed in the sixth
and eighth wards of the city of Keno
sha and that such illegal votes should
be divided between the candidates in
proportion to 1.-THE whole vote of each
in such wards or election districts
Counsel for defendant urge that the
illegal votes should be divided be-
tween the candidates in proportion to
the whole vote of each in the county
instead of in the said two respective
districts. No other alleged error or
reason for a rehearing or reconsider
alton is presented. 1t is contended
by counsel for defendant that by con-
sideration of only the two election
districts in question the election of a
district attorney is determined by the
result of those two districts and
that the voters of all other election
districts are hereby DISTINGUISHED
by the court.
Only Districts Questioned
This argument does not appeal to
the court as being sound. The result
Of the election as determined by the
court is based upon the unquestioned
votes of the whole county | say 'un-
questioned because no other election
district was brought into question or
issue in the proceeding. 1t will not
be overlooked that the complaint speci-
fic&lly questioned the votes in the sixth
and eighth wards only, The allega-
tions of unlawful voting were confined
20 those two election districts. Upon
those allegations the issues were made
up by the complaint, and the answer
of the defendant. Investigation by
the court as to alleged irregularities
in voting was therefore properly and
necessarily under established proceed
ure restricted to such districts.
Expected Other Defense.
The court anticipated that the ans
YER would bring other election dis
tricts into question and was surprised
when that was not done, but the courts
do not prepare pleadings for parties
nor prepare their eases for trial. The
function of courts is to decide mat
ers submitted to them as presented
f. tic issUns ~as1e Nv THO r>lendiAe-