23 Colo. App. 456 | Colo. Ct. App. | 1913
delivered the opinion of the court.
Motion to remand, by plaintiffs in error, was filed November 20th, 1912, and is based upon section 6, chapter 107, of the legislative act creating the court of appeáls, page 269, session laws 1911. ’ ’
“Or if before a hearing in any case either party thereto shall advise the court of appeals that it belongs to one of the classes of cases in this section above specified, and the court shall, upon investigation, so find, it shall at once and without further proceedings remand the same to the supreme court for determination.”
We are of the opinion that this language clearly implies that one seeking to have a cause remanded under this section must use reasonable diligence in invoking the benefit of the same. Upon "full consideration of the record of the proceedings herein, we think plaintiffs in error
This action was begun April 18th, 1911. Except as to some matters hereinafter mentioned, the facts and law herein are so nearly identical in their nature with those-of case No. 3677, supra, that upon authority of the latter the judgment herein will be affirmed.
“Under our practice, a demurrer to the complaint, except for the grounds that the same does not state a cause of action and that the court has no jurisdiction of the person of the defendant or the subject of the action, is waived if, after the demurrer is overruled, the defendant answers and goes to trial upon the merits.”
“That plaintiff had no legal capacity to sue” is the second ground for which a demurrer may be filed under section 50, Mills’ Annotated Code. This case falls within the rule announced in the foregoing excerpt, but even if it did not, there is abundance of authority which sustains the right of plaintiffs in error to maintain this action.—Martin et al. v. Simpkins et al., 20 Colo., 438; Wheeler v. Northern Colo. Ir. Co., 9 Colo., 248; Rizer et al. v. The People et al., 18 Colo. App. 40; Phillips et al. v. Corbin et al., 8 Colo. App., 346; Lanier et al. v. Padgett et al., 18 Fla., 842; Gibson v. Supervisors, 22 Pac. (Cal.), 225.
As to the ground stated in the demurrer, that the complaint does not state facts sufficient to constitute a cause of action, the complaint alleges fraud on the part of the judges and clerks of the election in opening the ballot boxes, holding back the returns, and manipulating the ballots, thereby changing the result of the election;
The trial court, in its findings and decree, held that of three persons, naming them,'who -voted in favor of the town becoming anti-saloon territory, neither thereof was a qualified elector when he voted; and that of seven voters, naming them, who voted at said election against the town becoming anti-saloon territory, each and all thereof were illegal voters, not being qualified electors at the time they cast their ballots. All such votes were excluded by the court from the count. As to the seven excluded, plaintiffs in error challenge the ruling of the court only as to three thereof. The court’s ruling as to the remaining four will be presumed to be without error. As to the court’s ruling in excluding certain votes from the count and refusing to exclude others, the remarks of this court in Patterson v. People, supra, on similar rulings in that case, will apply.
Judgment Affirmed.
Cunningham, P. J., not participating.