45 Colo. 515 | Colo. | 1909
delivered the opinion of the court:
At the general election in November, 1908, Henry Nordloh and Albert H. Packard were opposing candidates for election to the office of county commissioner of Adams county. The count .of the official returns of the election officers, made by the county canvassing board, gave Nordloh 182 majority; and thereupon the certificate of election was issued and delivered to him. Packard being dissatisfied, instituted this contest in the county court against Nordloh, and in the written statement which our special statute requires, alleged, in legal effect, that if the election had been honestly conducted and the votes fairly counted, as they were not, the majority would have been in his favor; but because of various mistakes made and frauds perpetrated by the election officers and others, in conducting the election and counting the vote, he was wrongfully deprived of his majority, and the certificate given to Nordloh. Nordloh filed his answer December 14,1908, and after denying the
Six days later and on December 23d, counsel for
A number of errors were assigned, but only two are argued by contestee—the first, that the county judge should not have tried the case; the second, that the judgment was not sustained by the evidence. The second ground will be disregarded and the case will be reversed because the county judge should not have decided the contest.
The special statute, Session Laws 1885, p. 193, which furnishes the special procedure for the trial of contested election cases, has no specific provision for a change of the place of trial, or for an application, such as is made here, for calling in another judge to try a case, upon the ground of prejudice or partiality of the regularly elected and presiding judge. Counsel seem to agree, however, that in the absence from this statute of any such authority, our code of procedure, which does make such provision, should be followed. Under sections 30 and 31 of the code a party has not the absolute right to have his cause tried by a judge other than the regularly elected and presiding judge of the court,, on the alleged ground of the latter’s prejudice. The matter lies in the sound discretion of the judge to whom the application is made and his decision is not' reviewable unless an abuse of discretion is shown.—People v. District Court, 30 Colo. 488; Doll v. Stewart, 30 Colo. 320. The showing here was, on its face, inadequate, and had- the court made an order overruling the application there would be no error, were it not for the matters to which we now refer. The record does not
Wholly without reference to the merits of the case, we have no doubt that this contest should not have been decided by Judge Gutheil, even if it was necessary for him to begin it and turn it over unfinished to his successor.
This record discloses that after final judgment,, which included an order setting aside and holding for naught the certificate of election theretofore issued to Nordloh, and granting a certificate of election to Packard, Judge Glass, the successor in office of Judge Gutheil, made an order suspending for a certain period of time the execution of the judgment which granted the certificate of election and awarded the office to Packard.' This was manifest error and must be set aside. Even at the same term at which
Reversed and remanded.