131 P. 673 | Mont. | 1913
delivered the opinion of the court.
At' the general election held in Silver Bow county on the 5th day of November, 1912, Joseph McCaffery, H. Lowndes Maury, and Louis A. Smith were contesting candidates for the office of county attorney. The county canvassing board declared McCaffery elected, and issued a certificate to him. Within the time allowed by law for filing contests George Curry, a resident of Silver Bow County and a qualified elector therein, filed in the district court of that county his statement contesting the right of McCaffery to the office of county attorney. The ground of the contest is malconduct on the part of the election officers, which, it is alleged, resulted in depriving the rightful claimant of the office. On December 2, after this statement had been filed, the district court, presided over by Judge Lynch, made an order calling a special session of the court for December 16 to determine such contested election case, and directed
1. Objection is made to the record by which this appeal is sought to be presented. Under our Code the proceeding for contesting an election is classed as a special proceeding. While it partakes of the nature of a civil action, it is not in fact such an action. It is altogether statutory. The provisions of law governing are found in sections 7234-7249, inclusive, of the Revised Codes. The only provision with reference to an appeal
2. That Judge Lynch had authority to call one trial judge after another, until he finally secured the services of one who
3. Complaint is made of the form of verification attached to the statement of contest. While it is somewhat informal, it is
4. The record fails to disclose the cause of Judge Lynch’s
5. The special session of court to hear this contest was ordered for December 16. The postponement to the 19th and again to January 3, 1913, was taken by agreement of the parties, and no one complains. By filing the statement of contest in time, the district court of Silver Bow county acquired complete jurisdiction of the subject matter involved herein, and by due service of the citation upon the contestee equally complete jurisdiction was acquired over the parties. The court having met at the time and place designated in the order convening the special session, there was then presented a question for adjudication, a court having exclusive jurisdiction, and a special term duly convened for the purpose of hearing and determining the question.
In their brief, counsel for contestee say: “The jurisdiction of the court in this case was determined and ousted by the provisions of section 7244, Revised Codes of Montana.” As the trial of this cause was never begun, the provision of section 7244, above, for adjournment from day to day, was never invoked. The adjournments after January 3 were taken from time to time before the commencement of the trial, and over the objection of the contestee. Paraphrased, that portion of section 7244, above, invoked by the respondent, reads as follows: Upon the application of either party the court may continue the trial before its commencement for not more than twenty days, upon two conditions: (a) That the applicant present good cause by affidavit; and (b) that he pay the cost-of the continuance. But in the instant case every continuance was had upon the court’s own motion. Neither party asked for a continuance, and, so far as this record discloses, neither party desired one. There could not be any showing of cause, and there was not anyone upon whom the cost of the continuance could be imposed. Therefore the provision of section 7244 for a continuance before trial has no application to the facts of this case. We are confronted with the fact that the trial court ordered these adjournments of its own motion. If Judge Clements had appeared and tried the cause on January 6, no complaint could have been made. The periods covered by the several adjournments, including .the adjournment to January 6, equaled, but did not exceed, twenty days. The twenty days from December 16 would have expired on January 5, but for the fact that January 5 was Sunday, and, under the rule of computation of time prescribed by the Code, that day is excluded. If, then, the court
The orders postponing the trial from January 3 to January 4, and from January 4 to January 6, even if erroneous, were orders made within jurisdiction, and in the absence of any showing of injury or inconvenience to the contestee arising therefrom, they are to be treated as errors without prejudice; and the same rule would be invoked as to the postponement to January 8 if it was accomplished by an order which the court had authority to make. So that by this process of elimination we reach the only serious question presented, viz.: Did the postponement of the trial to a date more than twenty days from the day on which the special session was convened work a discontinuance of the proceeding? The answer to this involves a consideration of two other questions:
(1) Is the duration of the special session which is authorized
In support of their view counsel for contestee cite English v. Dickey, 128 Ind. 174, 13 L. R. A. 40, 27 N. E. 495, but the decision was upon a statute which is quite different from ours, and one whose terms seem to lend support to the position taken. The statute considered by the Indiana court authorizes the trial board to grant continuances “not exceeding twenty days altogether.” Of this the court said: “In our opinion it was the intention of the legislature that the entire time given to the consideration of a contested election ease by the board of county commissioners should be twenty days altogether.” There is not anything in our Code which limits the special term or special session to twenty days or at all. The language of section 7244, above, is that the court “may adjourn from day to day until such trial is ended.” As indicated above, the limitation upon the power of the court to grant a continuance for not more than twenty days applies only when an application by one party has been made for cause. The provision is reasonable, and its pur
(2) Has the trial court authority of its own motion to postpone the trial of an election contest before the actual commencement of the trial? The position of counsel for eontestee is, in effect — though not in terms — that the court does not have such authority, and support for this view is found in the declarations of the supreme court of California in construing statutory provisions similar to our own. In Dorsey v. Barry, 24 Cal. 449, there-was presented the single question: Has the trial court authority to grant a new trial in an election contest case ? The supreme court very properly determined that such authority was not lodged in the court and annulled all proceedings subsequent to the judgment confirming Barry’s election. With that decision itself there cannot be any fault found; but, notwithstanding there was not involved any question of the power of the trial court to grant a continuance, and no continuance had been had, the supreme court, by dictum pure and simple, undertook to construe the provisions of the California statute similar to those of our section 7244, and said: “In section 62 of the Act, provision is made for the continuance of the special term, not exceeding twenty days, upon good cause shown before the commencement of the trial; and it further provides that after the commencement of the trial it may be continued from day to day until such trial is ended. The continuance in those two eases being provided for, all further power of continuance is excluded.”
Counsel also cite Norwood v. Kenfield, 34 Cal. 329, but the only question involved there was the power of the judge at chambers to grant a continuance of the trial of an election contest after the special term had been fixed and before the trial
Counsel for contestee rely with great confidence upon the decision in Keller v. Chapman, 34 Cal. 635. In that case, after the trial of the contest had proceeded for two days, the trial court, on contestant’s motion and over the objection of the contestee, granted a continuance for seven days. The supreme court refers to the dictum in Dorsey v. Barry, quoted above, and makes it the foundation for its further observations as follows: “The summary nature of the proceedings is inconsistent with the exercise of the general discretionary power of granting continuances possessed by courts in civil actions. The expression of the particular mode and time of continuance is exclusive of all non-enumerated modes and times. The continuance from the 6th of the month, when the cause was on trial, to the 13th of the same month, against the objections of the respondent and without an affidavit showing cause, was unauthorized, and operates as a discontinuance of the proceeding.” We are unable to appreciate the force of that argument, and in our opinion the California court failed to grasp the meaning of the provisions of the statute involved. In Falltrick v. Sullivan, 119 Cal. 613, 51 Pac. 947, the decision in Keller v. Chapman is overruled in fact, though not in terms. In O’Dowd v. Superior Court, 158 Cal. 537, 111 Pac. 751, it was held that the provisions of section 1119 of the California Code of Civil Procedure (sec. 7242, Montana Rev. Codes) are directory merely. In Hagerty v. Conlon, 15 Cal. App. 643, 115 Pac. 762, the same rule was applied to the provisions of section 1118 of the California Code of Civil Procedure (sec. 7241, Montana Rev. Codes). In Busick v. Superior Court, 16 Cal. App. 499, 118 Pac. 481, the same rule was again applied to the provisions of section 1121, California Code of Civil Procedure, which are the same as the provisions of our section 7244, above. And in Moore v. Superior Court (Cal. App.), 128 Pac. 946, the doctrine of the Busick Case was reaffirmed. We are not required to adopt either theory thus advanced by the California court.
The judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.