Calvert v. Whitmore , 45 Kan. 99 ( 1890 )

Opinion by

SiMPSON, C.:

This is an original action in this court. The petition alleges that the plaintiff, G. L. Calvert, is and was a resident of Itasca township, in Sherman county, on the 1st day of November, 1889; that at the regular election in November, 1889, the plaintiff and the defendant were candidates for the office of justice of the peace in and for said township; that the defendant, Charles W. Whitmore, received 159 votes, and that the plaintiff received 157 votes, and, in addition to the 157 perfect ballots that were cast for the plaintiff, the following imperfect votes were cast: One for Calvert, one for A. L. Calvert, and one for J. C. Calvert. He further alleges that the three ballots cast, bearing respectively the names of “Calvert,” “A. L. Calvert,” and “J. C. Calvert,” were meant and intended by the voters so casting them for this plaintiff, G. L. Calvert, and in truth and in fact were so voted for plaintiff for said office; that in erasing the name of Charles W. Whitmore and writing instead thereof the. name of the plaintiff on said ballots, the persons preparing the same meant and intended to write on each of said ballots the name of G. L. Calvert, but by mistake wrote the names as aforesaid; that prior to said election, the electors of said township met in mass convention and nominated as candidates for justice of the peace, W. K. Brown, Charles W. Whitmore and this plaintiff, G. L. Calvert, and that these three persons were the only candidates for said office at said election; that, at the time of the election,, this plaintiff had an office in the town of Goodland, in said township; that no person bearing the name of A. L. Calvert or J. C. Calvert resided in said township; that the only other person residing in said township bearing the name of Calvert was a farmer residing on a claim in the most remote corner of the township, and who was not a candidate, and who was entirely unknown to the great body of the electors of said township; and that the names of the electors casting the three ballots above named are known to the plaintiff, and are ready and willing to testify that said ballots bearing the names of “Calvert,” “A. L. Calvert,” and “J. C. Calvert,” were so prepared and voted by mistake, but were in fact cast for the plaintiff for justice of the peace. He then alleges the canvass of the vote, the issuance of a certificate of election to defendant; that the plaintiff filed his oath of office and offered an official bond for approval, ■demanded the possession of the office, etc.

To this petition a demurrer is interposed because it does not state a cause of action. We think the petition contains every necessary allegation to state a good cause of action on the part of the plaintiff, and therefore recommend that the demurrer be overruled, and the defendant allowed thirty days to answer.

By the Court: It is so ordered.

All the Justices concurring.