Kelly v. State ex rel. Kierskey

Citations

• 79 Miss. 168

Syllabus

<p>1 Election's. Quo warranto. Illec/al votes. Evidence. Amendment. Pleadings.</p> <p>In an action of quo warranto, to decide which of two persons received a majority of the legal votes east at an election, defendant, after the close of the plaintiff’s evidence, is entitled to amend his pleadings and offer evidence to show that votes were east for the relator by persons who were not qualified electors.</p> <p>2. Same. Election officers. Eraud.</p> <p>In a contested election suit a plea averring that certain votes were cast for the relator, by persons who were not qualified electors, is not demurrable because it fails to charge fraud on the election officers, nor can it be held bad on the assumption that it cannot be legally shown how such persons voted.</p> <p>3. Same. Ballots. Voter's choice. Sow indicated. Code 1893, g 3664. Two crosses (xx).</p> <p>Under code 1893, g 3664, providing that the name of the person voted for on a ballot shall be marked with a cross (x), the use of two crosses (xx) to designate the name of the person voted for does not invalidate the ballot.</p> <p>4. Same. Stra/lght ma/rk. Name erased.</p> <p>Under said statute ballots on which the voter’s choice is sought to be indicated by a straight mark opposite a name, or by erasing a name, should not be counted; the statute intends a (x) only to indicate the choice of th.e voter.</p> <p>5. Same. Public office. Code 1893, g 3540. Municipal offices.</p> <p>A municipal office is a public one within the meaning of code 1893, g 3540, providing for the trial in vacation of quo warranto proceedings involving the right to any public office.</p> <p>6. Same. Special judge. Code 1893, gg 921, 923. Jurisdiction.</p> <p>Under code 1892, g 922, providing that when a judge of any district is disqualified to act in any matter in vacation, such matter should be heard by the judge of another district, a quo wa/rranto proceeding cannot he heard by a special judge, under an appointment by the governor. Code 1892, §