Opinion
No. 6788
Opinion Filed October 13, 1914.
APPEAL AND ERROR — Appealable Orders — Recount of Ballots. Where C. and S. were opposing candidates for a certain county office at a primary election, and after such election the canvass of the returns by the election board showed C. to have received a plurality of all the votes cast, and where S. thereafter obtained an order from the district court directing the election board to open the ballot boxes and proceed with a recount, held, that such order was not a final order, within the contemplation of sections 5237 and 4644, Rev. Laws 1910, and an appeal will not lie.
(Syllabus by the Court.)
Error from District Court, Comanche County; Frank M. Bailey, Judge.
Injunction by R. B. Compton against Clifton W. Simpson. From an adverse order, plaintiff brings error. Dismissed.
J. A. Fain and Stevens Myers, for plaintiff in error.
Parmenter Parmenter and W. C. Henderson, for defendant in error.
R. B. Compton, plaintiff in error, and Clifton W. Simpson, defendant in error, were opposing candidates at the primary election for the Democratic nomination for the office of county clerk of Comanche county, Okla. A canvass was made by the county election board of said county, and results announced showing Compton to have received a plurality of the votes cast. Thereafter, upon application duly filed by defendant in error and protest made by plaintiff in error, the county election board announced they would proceed to a recount of the ballots, but before doing so they were prevented by injunction proceedings commenced in the district court of Comanche county by plaintiff in error; the injunction being granted upon the ground that an order of court was necessary before the ballots could be inspected and recounted.
Accepting this as the correct method of securing this relief, defendant in error made application to the judge of the district court for an order to open the ballot boxes and to recount and inspect the ballots, and, over protest of plaintiff in error, it was ordered that the election board be authorized and directed to open the ballot boxes and proceed with the recount. From this order the plaintiff in error appealed to this court, and the cause is now before us on motion to dismiss, for the reason that the order of the district court directing a recount is not an appealable order.
The motion is sustained, for the reason that the order is not a final order, within the contemplation of sections 5237 and 4644, Rev. Laws 1910.
All the Justices concur.