162 N.W. 391 | S.D. | 1917
This is an election contest wherein the plaintiff claims that -he was legally elected to the office of county auditor of Hanson county, at the general election held on the 7th day of November, 1916, but that, because of a mistake in counting and canvass of the vote, the canvassers declared defendant elected to said office.
Plaintiff served and filed a notice of contest in which he sets out the grounds on which he contests defendant’s election, but he does not allege that he had been a candidate for said office, or that his name had appeared on the printed ballot that had been used at the said- election. Said notice was not signed by the state’s attorney of Planson county, nor does it appear therefrom that the contest had been allowed by the circuit court or judge thereof. To this notice defendant interposed an answer in which he excepts to the sufficiency of the said notice for the reason that it does not appear therefroffi that plaintiff had been a candidate for said office or that his name had been on the printed ballot that was used at said election; that it was not signed by the state’s attorney and had not been allowed by the circuit court or judge thereof; that it does not appear from said notice how many votes were canvassed for any candidate for said office; that the facts stated in said notice are not sufficient to give the court jurisdiction of this proceeding, nor to entite the plaintiff to< any relief whatever. The answer also denies all the material allegations in said notice except that the plaintiff is a qualified elector of Hanson
“The notice of contest is jurisdictional and must be served and filed within 20 days of the day of election, and any attempt to amend the notice of contest after the expiration of 20 days is too late and cannot be allowed by the court. And for the further reason that the original notice of contest in this case fails to show any cause of action or grounds for the contest, and fails to show that the contestant has any rights .whatever in this office or to maintain this contest. And for the further reason that tlie court is without jurisdiction at this time to entertain his contest or to allow this amendment.”
The objection was sustained, and judgment was entered dismissing' the contest at plaintiff’s cost.
While the notice is defective as a pleading in that the material facts are not pleaded with that degree of certainty that is essential to good pleading, still it is sufficient to show that plaintiff instituted the contest as a candidate who is. claiming -a right to the disputed office, and not as an elector, who is contesting the validity of the election. The defect consists of a lack of certainty rather than a lack of substance, and is sufficient to confer jurisdiction upon the court.
“W-e do not wish to be understood- as holding that amendments which do n-ot essentially change the grounds of the contest may not -be properly made at any time when justice requires-such amendments, but an amendment so radical as to virtually constitute a new contest cannot be permitted after the time limited for instituting the proceedings has expired.”
As- before said, the amendment involved in this case does not change the grounds -of the contest, nor the theory upon which plaintiff is seeking to recover, and the amendment should have teen allowed.
It is our opinion that in election contests instituted under the provisions of section 1988, Pol-. Code, the notice of contest must be served within 20 days after the abstract of the vote has been signed by .the canvasing board and deposited in- the county auditor’s office.
The judgment and order appealed from are reversed.