Burnett v. Meyer ( 1925 )

PLAINTIFF in error Burnett and defendant in error Meyer were opposing candidates for the office of county commissioner of Kiowa county at the general election of November 4, 1924. The canvassing board found Meyer elected by a majority of five votes and the certificate was issued to him. Burnett brought this contest which was dismissed for want of service. That judgment was reversed here and the cause remanded for trial on the merits. Burnett v.Meyer, 77 Colo. 272, 236 P. 994. The county court found Meyer elected by a majority of six votes and entered judgment accordingly. To review that judgment Burnett brings error and asks that the writ be made a supersedeas.

There are 63 assignments of error, 113 pages of briefs, 1500 folios of transcript, and two volumes of exhibits. An analysis, in this opinion, of the evidence and a reannouncement of the law as to each contested ballot, would be an interminable and unprofitable task. There is no serious disagreement as to the law or any point affecting the final result, and the principal questions raised relate to the residence of electors whose votes were contested. In almost every instance this turned upon the intention of the voter. Assuming an intent to retain, acquire, or change residence there is evidence to support the intent as found by the court. In each of these cases this evidence is conflicting and the rule is well settled that we will not, under such circumstances, interfere with the finding. We are urged to do so on the ground that the evidence is by deposition and the rule not applicable. This is true only as to a portion of the evidence, as in each doubtful case there is oral testimony which contradicts or explains the written, and if believed, as we must assume, supports the finding and upholds the rule.

The foregoing does not apply to Marie Dodson, whose vote was counted for defendant and as to which we think the trial court clearly in error, and probably not to the vote of Merle Edwards, but as the exclusion of these two would make no difference in the result we find it unnecessary to examine them further.

The supersedeas is denied and the judgment affirmed.

MR. JUSTICE CAMPBELL not participating.