Coglan v. Beard

Belcher, C. C. This is the second appeal in this case. Upon the first appeal the judgment was reversed and the cause remanded for a new trial. (65 Cal. 58.)

On the second trial judgment was again rendered in favor of the plaintiff, and from that judgment this appeal,is taken.

The findings fully support the judgment, and the only points made by the appellant are that some of the findings are not justified by the evidence, and that the court erred in admitting certain evidence against the objection of the defendant.

1. We cannot review the evidence for the reason that there is in the bill of exceptions no specification of the particulars in which the evidence is alleged to be insufficient to justify the findings. The specification is that “the court erred in finding” certain facts, but that does not meet, the requirements of the Code. (Code Civ. Proc. § 648.)

But if the specifications had been sufficient the point would not have been well taken.

There was evidence, which if admissible, was sufficient to justify each of the findings of fact.

2. At the general election held in Sacramento County in November, 1882, the plaintiff and defendant were candidates for election to the office of county clerk. According to the returns of the election, as canvassed by the board of supervisors, the [305]defendant had a plurality of sixteen votes, and he received the certificate of election. In due time the plaintiff commenced this proceeding to contest the right of the defendant to the office. The case was tried before the Superior Court early in December, and in the course of the trial all the ballots cast at the election were brought into court and counted by the judge presiding. Judgment was rendered in favor of the contestant, and from that judgment Beard appealed on the 22d day of December, and within five days thereafter perfected his appeal by filing the necessary bond.

At the time the appeal was taken and perfected Thomas H. Berkey was clerk of the county, and the contestant Cogían was his deputy. Berkey’s term expired on the 8th day of January, 1883, and on that day he turned the office and everything pertaining to it over to Cogían, who retained possession up to the time of the second trial of the case. Among othér things of which he thus became custodian were the ballots cast at the election to which the contest relates. After the ballots were counted on the first trial, they were replaced by Berkey in the vault of the hall of records, and the vault was securely locked. When Berkey surrendered the office to Cogían he turned over to him also the keys to this vault. On the second trial the contestant first proved that the ballots were the genuine ballots delivered to the county clerk by the officers of the election; that they remained securely locked in a vault and in the same condition as when delivered, up to the time when they were brought into court to be counted on the first trial; that after they were counted they were returned by the judge, who had counted them, to their respective envelopes, and were again securely and carefully sealed up by him, and a strip of paper was gummed over the opening cut in the envelope, on which he wrote his initials; that they were then returned to the vault, and remained there in no way changed or tampered with until they were brought into court to be again counted on this trial. The contestant then offered in evidence the ballots from ten precincts of the county and asked that they be counted. .The defendant-objected to the ballots being received in evidence, or counted, upon the ground that it appeared that the said ballots and all ballots returned to the county clerk from the several precincts