McDonald v. Wood , 118 Ala. 589 ( 1897 )

HEAD, J.

There ivas no merit in the several objections made to the security for costs. The sureties themselves executed the obligation; it shows the consideration was the institution of the contest, and bound the sureties for the costs thereof. The case is unlike Bullard v. Johns, 50 Ala. 382.

The bill of exceptions does not purport to contain all the evidence. We cannot, therefore, review the court’s findings of fact.

But, the judgment must be reversed by reason of the refusal of the court to permit the contestee to prove that A. O. Everett, or “Lonny” Everett, as he was generally called, who had voted for Cary, was not a legal voter. The contestee had served notice on contestant of the names of persons charged by him to have voted illegally for Cary, among which was the name “L. Everett.” This man’s name was Alonzo O. Everett. He voted for Cary at the election. The court refused to permit contestee to prove that he had not, at the time of the election, been a resident of the State for twelve months, on the ground that the name “L. Everett,” as it appeared in the notice, did not legally notify contestant of the purpose to make such proof. There was no exception by contestant to the sufficiency of the notice, on its face, on account of any of the names being stated with only initials of Christian names, as many of them were stated, or on any other account. Everett being generally known by the Christian name of “Lonny,” in legal contemplation, that was as efficaciously his Christian name as Alonzo. By it he could legally have been indicted, tried and convicted for any crime he may have committed, against any plea of mis-nomer. The notice,. as contestant accepted it, was sufficient, and the proposed proof ought to have been admitted. We cannot affirm that this error did not affect the result. Under the ruling, the court could not exclude, in its final finding, the vote of Everett, and. we have no right to presume that all the evidence was such that its non-exclusion did not prejudice the contestee.

There was 'no error in permitting the witnesses produced by contestant to testify for Avliom they voted. The falsity of the tickets, by reason of the alleged fraudulent substitution, Avas the gist of the action, and to bind the contestants to the tickets themselves, Avhich the inspectors had preserved, for proof of how the electors voted, Avould be to render the contest an empty and useless proceeding.

The law forbade the “fixer,” Laird, to be present at the counting of the votes, and it was the legal duty of the inspectors to require him to depart. The fact that they did so cannot be received in evidence to affect the rights of either party to the contest.

There was nothing objectionable in the question to the witness, O. R. Morris, as to the lines. They did not necessarily call for expert testimony. If the answers to the questions stated facts that were illegal, the remedy was to move to exclude such facts. There was no such motion here. We remark, hoAvever, that if the witness kneAV no more of the true location of the lines than the information derived by him from the survey made by a surveyor employed by him to locate them, he was not competent to testify on the subject. It would be hearsay merely.

This disposes of the exceptions resented.

Rev'ersed and remanded.