6 S.D. 257 | S.D. | 1894
This was an election contest, instituted under the provisions of the statutes of this state. A trial was had resulting in a judgment for plaintiff. A motion for a new trial was made by the defendant and granted by the court, and from the order granting such new trial the plaintiff appeals. The facts sufficiently appear from the ■ notice and amended notice of contest, which are copied into this opinion.
On November 30, 1892, the plaintiff- caused to be served upon the defendant a notice of contest, as follows; “(1) That at all of the times hereinafter mentioned plaintiff was, and now is, an elector of said Roberts county. (2) That an election was held in said county on the 8th day. of November, 1892, and that plaintiff and defendant were both candidates for the office of county judge of said county, and that at said election plain
In a motion for a new trial the defendant specified a large number of errors, but in the view of the case we take it will be only necessary to insert the following: “(1) Insufficiency of the evidence to justify the decision of the court, and that .said decision is against law. (2) Errors of law occurring in the proceedings and at the trial, and excepted to by the defendant.
“Sec. 1489. Any candidate or person claiming the right to hold an office contested, or any elector of the proper county desiring to contest the validity of an election or the right of any person declared duly elected to any office in said county, shall give notice thereof in writing to the person whose election he intends to contest, within twenty days after the canvass
‘‘Sec. 1491. 'The contest provided for in this act maybe brought by a candidate or person claiming said office, on his own motion, in his own name as plaintiff, but such contest cannot be brought by an elector without the notice is signed by the district attorney of the proper county, or upon his refusal to sign said notice of contest the contest may be allowed by the court or judge thereof.”
The learned counsel for the respondent contend that the court below erred in its ruling in denying the defendant’s motion to dismiss the action or proceeding' on the ground that the notice of contest was not signed by the state’s attorney, nor filed by permission of the circuit court or judge, and that by reason of such error it was its duty to grant a new trial. They also contend that the learned circuit court erred in granting the plaintiff permission to file an amended notice of contest more than 20 days after the canvass of the election returns, the same constituting a new cause of action, and for such error it was the duty of the court to grant a new trial. They also contend that the court erred in adopting the conclusions of law of the referee, and holding that the defendant was ineligible to the office of county judge of Roberts county, and for such error a new trial was properly granted. There were other questions raised and discussed by counsel, not necessary now to be stated. Treating the questions presented in their order, the notice to dismiss the proceedings will be first cunsidered.
The notice of contest was neither signed by the state’s attorney, nor his refusal so to sign alleged, nor that the contest was allowed by the court or judge thereof alleged. It will be observed from an examination of the notice of contest that the plaintiff makes no allusion to the fact that he is an incumbent of the office by appointment, and that he makes no claim to
Taking this view of the notice of contest, it is quite clear that the failure to have the same signed by the state’s attorney or allowed by the court, or judge rendered it nugatory as a notice, and insufficient to give the court jurisdiction of the proceedings. But if we are not correct in this position, we think the amendment to the notice of contest was erroneously allowed. As before, stated, the plaintiff, in his original notice, made no allegation as to his appointment to the office of county judge by the governor, and made no claim of a right to the office by reason of his incumbency of the office or otherwise.
That the amendment as allowed constituted an entirely new cause of action will .be more apparent from an examination of the legal principles governing the original and amended notice. As has been before stated, the original notice contained no allegations upon which the plaintiff , would have been entitled to the office. A candidate receiving the next highest number of votes at an election will not, by virtue of that fact, be entitled to the office, notwithstanding the candidate receiving the highest number of votes is ineligible. This doctrine seems to be supported by the weight of authority in this country, though a different rule prevails in England under certain circumstances. Mr. McCrary, in his work on Elections, after reierring to numerous cases, says: “Thus it will be'seen that the weight of authority - in this country is decidedly against