79 Cal. 477 | Cal. | 1889
—Plaintiff and defendant were candidates for the office of sheriff of Nevada County at the general election held in November, 1888. The returns as canvassed by the board of supervisors showed that Dunster had received a majority of eighty, votes and a certificate of election was issued to him. This proceeding was commenced by plaintiff to contest the election and cancel the certificate of defendant, on the ground that the judges of election in several precincts had through negligence and malconduct made incorrect returns, and had counted and tallied votes for Dunster which had been cast for Lord. A special session of the court was ordered for December .27,1888, a citation was
At the threshold of our consideration of the appeál, respondent makes an objection, challenging the jurisdiction of this court, and claiming that there is no warrant in the constitution for an appeal from the superior court in this or any other contested election case; that it is a “special proceeding,” not included in the “cases at law” of which this court is given appellate jurisdiction by the constitution, and that the act of the legislature providing for an appeal in cases of this kind (Code Civ. Proc., sec. 1126) is void. He concedes that “the mere classing of a civil action under the head of special proceedings in the code is not absolutely determinative of jurisdiction, .... and that unless it can be shown that an election contest is a special case in its essential nature, as distinguished from any case at common law or remedy known to its framework objection to the jurisdiction of this court cannot be sustained.” In support of his contention that it is a special statutory proceeding as distinguished from a “case at law,” and particularly as distinguished from the common-law writ of quo warranto, he cites, among others, the following cases: Dickinson v. Van Horn, 9 Gal. 207; Saunders v. Haynes, 13 Cal. 152; Dorsey v. Barry, 24 Cal. 449; Casgrave v. Howland, 24 Cal. 457; Norwood v. Kenfield, 34 Cal. 332; Keller v. Chapman, 34 Cal. 635; Houghton’s Appeal, 42 Cal. 56; Bixbee’s Appeal, 59 Cal. 554.
It must be admitted that the decisions bearing upon
Under the constitution of 1863 the supreme court had appellate jurisdiction “in all cases in equity; also in all cases in law which involve the title, etc.; also in all cases arising in the probate courts.” The constitution
Neither Houghton’s Appeal nor Bixbee’s Appeal were contested election cases, and the exigencies of this case do not require us to approve or disapprove what was said therein.
We conclude, therefore, that we have no right to decline to exercise jurisdiction of the appeal.
The court erred in denying the motion for a continuance made on the opening of court Monday morning, and before a decision was made in the case. At the conclusion of the recount under the direction of the court, it appeared that Lord had received 2,114 votes and Dunster 2,056 votes, giving Lord a majority of 58 votes. No material change was made by the recount except in Boston Ravine precinct. The official returns of the board of supervisors gave Lord 140 votes in this precinct and Dunster 175 votes, a majority of 35 votes for Dunster. The recount of this precinct in court gave Lord 206 votes and Dunster 109 votes, a majority for
In support of his motion to reopen the case, and for a continuance, defendant filed an affidavit signed by Wiley, Morateur, and Mulroy, in which it was stated that they had acted as members of the election board of said precinct; that since the adjournment of the case on Saturday, a meeting of the citizens of Boston Ravine precinct had been held for the purpose of ascertaining who had perpetrated the fraud; that the citizens of the precinct were greatly surprised by the result of the recount, and in the interests of public justice wished to ascertain who had committed the fraud; that affiants were authorized to get the signatures of all persons who would certify that they had voted for Dunster, and that 139 voters of the precinct had signed a certificate to the effect that they had voted for Dunster for the office of sheriff; that if granted further time they could obtain many more signatures to the certificate, and the personal attendance ■of all persons who had signed the certificate to testify that "they had voted for Dunster, as they had been informed that they would be required to give evidence in court of the facts therein stated, and all had expressed a willingness to swear to the same. Attached to the affidavit was the certificate signed by 139 voters, in which they stated that they had voted for Dunster at the general election held November 6,1888. If the facts stated in that affidavit were true, if, in fact, 139 electors in that precinct voted for Dunster, he received a majority of all the votes cast in the county, and was elected, because it was proved during the trial that in the entire county outside of Boston Ravine precinct Lord had received 1,908 votes and Dunster 1,947 votes. The showing was so strong we think the court abused its discretion in refusing a continuance. A postponement was requested only until Wednesday, January 2d. .Tuesday being New Year's day, and a legal holiday, the postponement, if grunted,
As in divorce cases, a judgment cannot be taken by default. (Searcy v. Grow, 15 Cal. 117.) It cannot be said that no diligence had been shown when it appeared that the affiants had obtained the signatures of 139 electors between the adjournment of court on Saturday afternoon and Monday morning at ten o'clock. It would have been impossible for the defendant to have issued and served 139 subpoenas without asking for a postponement. The trial commenced on Thursday and ended on Saturday. The contention of respondent that the testimony proposed was not within the issues is not well taken. The case was tried upon the theory that the issue included the question whether the ballots had been altered. Counsel for appellant stated during the trial that he desired a full investigation of the case. The fact that the evidence of a change in the ballots would
The dismissal of the prior contest was made by plaintiff’s attorney before the citation was served upon defendant, and before any appearance was made therein. It did not operate, therefore, as a retraxit, and is no bar to this proceeding. (Davenport v. Turpin, 43 Cal. 597; McCreary v. Casey, 45 Cal. 128.)
The appellant makes other points against the validity of the judgment, but we find nothing in them calling for a reversal. For the error in refusing to grant a continuance, however, the judgment must be reversed, and the cause remanded for a new trial.
It is so ordered.
Works, J., Beatty, C. J., McFarland, J., and Sharp-stein, J., concurred.
Rehearing denied.