162 N.W. 898 | S.D. | 1917
Jacob Kundert, appellant, and J. A. Johnson, respondent, were candidates for the office of commissioner of the city of Madison at an election held on.the 18th day of April, 1916, at which election the respondent received more votes than appellant. The appellant instituted this contest against respondent to have said election -declared- vO-id on the ground of fraud practiced and perpetrated by the respondent. The notice of contest contained' the following allegations:
“A Statement.
“J. A. Johnson Stands for Oom-mission Government -and Economy in Salaries.
“In announcing my candidacy for a seat on the city corn-mis si-on I desi-re to state that I have all along believed in the -practicability of the 'Commission form- of city government, and I am now more firmly convinced than ever that the commission plan from a straightforward business standpoint can be turned to a far greater account than could the old aldermanfc form of city government. I do- believe, however, that a mistake was made when ■the salaries ;of commissioners were increased from $400 a year to $900 per annum. Holding the opinion I do- I wish to announce*46 that if I am elected at next week’s election, I wil-l accept only $400 a year for my services as commissioner. ' J. A. Johnson.”
That said statement was printed and published1 by said 'daily newspapers: from arndl after April 10, 1916, to and including April 18, 1916, and that the same was read by a large number of electors and taxpayers of said' city, and that a large number of electors of said city were induced thereby to vote for said J. A. Johnson for that office. That at said- election the plaintiff received 393 votes and! the defendant 459 votes.
That s'aid notice of contest als'o contained the following prayer for relief:
“Wherefore plaintiff 'asks ¡the judgment and decree of this court that the 'election of the defendant to the said 'office of commissioner be declared null and void', and that said office be declared Vacant, and that plaintiff have suitable relief 'and judgment for costs.”
Said notice of contest was personally served on the defendants on the 28th day of April, 1916. On the ist day of May, 1916, the plaintiff and contestant also' served upon all the defendant's an amended 'or substituted notice of contest in substance the same as the foregoing-, with- the exception that, 'in addition to being signed by die plaintiff and contestant, the same was also signed by the state’s attorney in and for Lake county. Thereafter on the 2d day of May, 191.6, the defendant J. A. Johnson, appearing specially, made and served a motion to dismiss' -s'aid action or-proceeding upon the following grounds:
“(1) That there -has n-ot been served upon the s'ai'd defendant a summons in said action.
“(2) That said action or proceeding was instituted without proper warrant 'or authority.
“(3) That there is no law authorizing such proceedings.
“(4) That the so-called ‘Notice of Contest’ does not state facts sufficient to- entitle plaintiff or any one else to- the relief sought in said notice or to any other relief.
“(5) That the Court is without proper jurisdiction, either of' the subject-matter or the person of the defendant.
“That s'aid motion .will be based upon the 'so-called ‘Notice of Contest.’ ”
From said ruling of the court the plaintiff and contestant h'as appealed, assigning as error the dismissing of said contest proceeding.
The order and judgment appealed from are reversed, and the cause remanded for further procedure in harmony with thisl decision.