155 P. 99 | Cal. Ct. App. | 1915
Appellant, at an election held in the county of Kern in 1914, was declared to have been elected to the office of supervisor. Thereafter respondent, who was the opposing candidate at that election, filed notice of contest and a recount of the votes of the supervisorial district was had in the superior court. Respondent was successful in that proceeding. The contestee has appealed from the judgment.
The main contention is that the evidence was insufficient to support the findings and judgment. By the notice of contest first filed the contestant set out various irregularities or acts of malconduct on the part of the board of election, as are *285
permitted under section 1111 of the Code of Civil Procedure, as grounds of contest, but did not specify in the original notice of contest particularly the ground afterward relied upon, that there had been a delay in the opening of the polls in precinct No. 20 of the supervisorial district. At a later date, and after the time had expired within which the proceeding of contest might be instituted, the contestant was allowed to amend his statement of contest by adding thereto an allegation as follows: "That in said precinct number 20, the said polling place as established by the Board of Supervisors, as aforesaid, was not opened at the time required by law, and a large number of voters were unable to vote, who had presented themselves at said polling place for the purpose of voting, prior to the opening of said polling place." The appellant objected to the making of this amendment, both on the ground that it was offered too late and also on the ground that it in its substance did not sufficiently set out a ground of contest. Both objections were by the court overruled. The trial judge concluded, as shown by the record, that inasmuch as malconduct of the officers of election in some particulars had been set out and alleged in the original statement of contest, adding to such allegation of malconduct statements of other acts committed by such officers would not in effect be the making of a statement of a new cause or ground of contest. While section 1117 of the Code of Civil Procedure, provides that no statement of the grounds of contest will be rejected for want of form, if the grounds are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which such election is contested, it does seem clear that the contestee in such cases is entitled to have stated the particulars in which it is charged that malconduct was committed on the part of the officers conducting the election. In the statement of contest first filed it was not shown in any way that contestant would rely upon proof that there had been a delay in the opening of the polls in any precinct; while he assigned malconduct, he particularized in allegations pointing to certain specific acts and things. It is to indulge great liberality indeed toward the contestant to concede his right to file the amendment that was made. It is also exceedingly questionable whether the statement in the amendment was sufficient to show such a delay in the opening of the polls as would make a good *286
ground of contest, for the quantity of time embraced within that delay is not stated; it is only stated that the polls were not "opened at the time required by law." In the case ofPackwood v. Brownell,
The judgment is reversed.
Conrey, P. J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 28, 1916, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 24, 1916.