BaTTlE, J.
This is a proceeding by certiorari to set aside an order of the St. Francis county court granting a new trial in a proceeding instituted by John B. Wilson to contest the election of John W. Aven to the office of treasurer of the county of St. Francis.
The proceeding to contest the election was commenced in the St. Francis county court some time in the month of September, 1892 ; and at the October term of the court, on the 25th of October, 1892, Wilson was adjudged to be elected county treasurer, and the certificate issued by the commissioners to Aven, showing that he was elected such treasurer, was cancelled by an order of the county court. After this the court adjourned until the 28th of October, 1892, and on that day again adjourned until the 31st of the same month. In the meantime, the term of the judge who presided on the 25th and 28th of October expired, and C. F. Hinton, his successor, qualified, and entered upon the discharge of the duties of the office. On the 31st of October, the day to which the court, adjourned, Aven filed a motion for a new trial, setting out the grounds on which the same was based, and on the same day the order made on the 25th of October was set aside, and a new trial was granted by the court, C. F. Hinton being the judge presiding.
On the hearing of the petition for the writ of certiorari, the circuit court set aside the order of the county court, which was made on the 31st of. October, for the following reasons: “1. None of the grounds or statements in said motion of J. W. Aven for a new trial were supported by any evidence. 2. The application for a new trial, and the order made thereon, were made without any notice to Wilson, and without allowing him or his counsel any opportunity to be heard. 3. C. P. Hinton, the county judge who granted the motion and order for a new trial, did not .preside in the trial of said, contested.election, was not present at the trial, and had no legal information concerning it, nor was evidence of any kind introduced to show that the statements or grounds of the motion for a new trial, or any of them, were true.” *
These findings of facts are not sufficient to sustain the judgment of the circuit court. If the county court had the power to grant the new trial, certiorari did not lie to set aside the order granting it. Did it have the power ?
Power of county court to grant new [ trial.
The Code of Practice in civil cases in this state provides as follows : “Section 23. Probate courts, county and justices’ courts shall have jurisdiction as is now, or may hereafter, be conferred upon them respectively by law.”, “Section 24-. Each of said courts shall conform to the provisions of this Code as far as the same is applicable to them, or to any proceedings of which they have jurisdiction." “Section 780. This Code of Practice shall regulate the proceedings in all civil actions and proceedings in the courts of this state, and all laws coming in the purview .of its provisions shall be repealed.” “Section 796. The provisions of this Code shall apply to and regulate the proceeding's of all the courts of this state, though not expressly enumerated, and of all that may hereafter be created.”
Prom these sections it is apparent that the code was intended to regulate the pleading and practice in all the courts of this state, then or thereafter created. Among its provisions is the following: “A new trial is a reexamination in the same court of an issue of fact, after a verdict by a jury or a decision t>y the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party :
‘ 'First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion by which the party was prevented from having a fair trial.
"Second. Misconduct of the jury or prevailing party.
"Third. Accident or surprise which ordinary prudence could not have guarded against.
"Fourth. Excessive damages, appearing to have been given under the influence of passion or prejudice.
‘ 'Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract for the injury or detention of property.
"Sixth. The verdict or decision is not sustained by sufficient evidence, or is contrary to law*
"Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
"Eighth. Error of law occurring at the trial, and excepted to. by the party making the application.” Code, sec. 371.
After repeatedly saying that it shall regulate the pleadings and practice in all courts in this state, the Code undertakes to say wherein it shall not govern the proceedings in such courts. Sec. 806-836. Among these exceptions is section 817, which says: ‘‘A new trial or rehearing may be granted in courts of justices of the peace, upon motion made within ten days after a judgment or final order has been made or rendered, of which motion notice shall be given to the opposite party.” And this appears to be the only section of the Code which provides that the regulation of the practice in respect to motions for new trials by preceding sections shall not, as a whole, govern any court. From this we infer that all courts of original jurisdiction were vested with the power to grant new trials in the cases authorized by the Code.
The code expressly provides that the county courts of this state shall conform to it, so far as the same is applicable to them, ‘‘or to any froceedings of which they have jurisdiction.” Its object in allowing new trials, as shown by the causes for which they may be granted, is to secure a fair trial; to protect against ‘‘accidents or surprise which ordinary prudence could not have guarded against;” to correct errors which materially affect the substantial rights of parties ; to prevent a failure of justice; and to protect the rights of all parties concerned. That county courts should be enabled, so far as practicable, to accomplish these objects there is no room for question. Many of these causes, abuses, evils or errors, for which a new trial is allowed for the purpose of correcting or remedying, may occur in them. As they may; so'much of the Code as provides the remedy for their correction is unquestionably applicable to that court. It is true, they may be corrected by an appeal to the circuit court. But that does not render the remedy for their correction in the court in which they occur inapplicable to the county court. The terms of that court are more numerous than those of the circuit, and for that reason they may be more promptly corrected in the former court. The remedy by a new trial may be more expeditious and less expensive than an appeal to the latter court, and for that reason, and because it is an appropriate remedy, should be allowed in the county court.
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BaTTlE, J.
This is a proceeding by certiorari to set aside an order of the St. Francis county court granting a new trial in a proceeding instituted by John B. Wilson to contest the election of John W. Aven to the office of treasurer of the county of St. Francis.
The proceeding to contest the election was commenced in the St. Francis county court some time in the month of September, 1892 ; and at the October term of the court, on the 25th of October, 1892, Wilson was adjudged to be elected county treasurer, and the certificate issued by the commissioners to Aven, showing that he was elected such treasurer, was cancelled by an order of the county court. After this the court adjourned until the 28th of October, 1892, and on that day again adjourned until the 31st of the same month. In the meantime, the term of the judge who presided on the 25th and 28th of October expired, and C. F. Hinton, his successor, qualified, and entered upon the discharge of the duties of the office. On the 31st of October, the day to which the court, adjourned, Aven filed a motion for a new trial, setting out the grounds on which the same was based, and on the same day the order made on the 25th of October was set aside, and a new trial was granted by the court, C. F. Hinton being the judge presiding.
On the hearing of the petition for the writ of certiorari, the circuit court set aside the order of the county court, which was made on the 31st of. October, for the following reasons: “1. None of the grounds or statements in said motion of J. W. Aven for a new trial were supported by any evidence. 2. The application for a new trial, and the order made thereon, were made without any notice to Wilson, and without allowing him or his counsel any opportunity to be heard. 3. C. P. Hinton, the county judge who granted the motion and order for a new trial, did not .preside in the trial of said, contested.election, was not present at the trial, and had no legal information concerning it, nor was evidence of any kind introduced to show that the statements or grounds of the motion for a new trial, or any of them, were true.” *
These findings of facts are not sufficient to sustain the judgment of the circuit court. If the county court had the power to grant the new trial, certiorari did not lie to set aside the order granting it. Did it have the power ?
Power of county court to grant new [ trial.
The Code of Practice in civil cases in this state provides as follows : “Section 23. Probate courts, county and justices’ courts shall have jurisdiction as is now, or may hereafter, be conferred upon them respectively by law.”, “Section 24-. Each of said courts shall conform to the provisions of this Code as far as the same is applicable to them, or to any proceedings of which they have jurisdiction." “Section 780. This Code of Practice shall regulate the proceedings in all civil actions and proceedings in the courts of this state, and all laws coming in the purview .of its provisions shall be repealed.” “Section 796. The provisions of this Code shall apply to and regulate the proceeding's of all the courts of this state, though not expressly enumerated, and of all that may hereafter be created.”
Prom these sections it is apparent that the code was intended to regulate the pleading and practice in all the courts of this state, then or thereafter created. Among its provisions is the following: “A new trial is a reexamination in the same court of an issue of fact, after a verdict by a jury or a decision t>y the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party :
‘ 'First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion by which the party was prevented from having a fair trial.
"Second. Misconduct of the jury or prevailing party.
"Third. Accident or surprise which ordinary prudence could not have guarded against.
"Fourth. Excessive damages, appearing to have been given under the influence of passion or prejudice.
‘ 'Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract for the injury or detention of property.
"Sixth. The verdict or decision is not sustained by sufficient evidence, or is contrary to law*
"Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
"Eighth. Error of law occurring at the trial, and excepted to. by the party making the application.” Code, sec. 371.
After repeatedly saying that it shall regulate the pleadings and practice in all courts in this state, the Code undertakes to say wherein it shall not govern the proceedings in such courts. Sec. 806-836. Among these exceptions is section 817, which says: ‘‘A new trial or rehearing may be granted in courts of justices of the peace, upon motion made within ten days after a judgment or final order has been made or rendered, of which motion notice shall be given to the opposite party.” And this appears to be the only section of the Code which provides that the regulation of the practice in respect to motions for new trials by preceding sections shall not, as a whole, govern any court. From this we infer that all courts of original jurisdiction were vested with the power to grant new trials in the cases authorized by the Code.
The code expressly provides that the county courts of this state shall conform to it, so far as the same is applicable to them, ‘‘or to any froceedings of which they have jurisdiction.” Its object in allowing new trials, as shown by the causes for which they may be granted, is to secure a fair trial; to protect against ‘‘accidents or surprise which ordinary prudence could not have guarded against;” to correct errors which materially affect the substantial rights of parties ; to prevent a failure of justice; and to protect the rights of all parties concerned. That county courts should be enabled, so far as practicable, to accomplish these objects there is no room for question. Many of these causes, abuses, evils or errors, for which a new trial is allowed for the purpose of correcting or remedying, may occur in them. As they may; so'much of the Code as provides the remedy for their correction is unquestionably applicable to that court. It is true, they may be corrected by an appeal to the circuit court. But that does not render the remedy for their correction in the court in which they occur inapplicable to the county court. The terms of that court are more numerous than those of the circuit, and for that reason they may be more promptly corrected in the former court. The remedy by a new trial may be more expeditious and less expensive than an appeal to the latter court, and for that reason, and because it is an appropriate remedy, should be allowed in the county court.
Appellee contends that the power to grant new trials should not be extended to contests of elections, because the legislature has “prescribed in express terms the manner in which a contest over the fairness and result of an election should be conducted, and conferred upon the county court special powers, distinct from and independent of its constitutional jurisdiction, to be exercised in the summary way pointed out by the statute.” This contention is based on sections 2697, 2698 and '2699 of Sandel’s & Hill’s Digest. But these sections do not provide a complete remedy for such contests. The proceedings prescribed by them are incomplete. Por instance, section 2697 provides that the contests of the elections of the couuty treasurer, and of other officers named, shall be before the county court, and the person contesting “shall give the opposite party notice in writing ten days before the term of the court at which such election shall be contested.” But it does not.say by whom and in what manner the notice shall be served ; and it says “the parties shall be allowed process for witnesses,” but does not say by whom and in what manner the process shall be served, or how the witnesses shall be compelled to attend. And section 2698 says that “either party may, on giving notice thereof to the other, take depositions to be read in evidence on the trial,” but does not provide by whom and in what manner they shall be taken. In none of .the contests provided by these statutes is there anything said about an appeal, notwithstanding the constitution of the state ordains that “in all cases of contest for any county, township or municipal office, an appeal shall lie at the instance of the party aggrieved, from any inferior board, council or tribunal, to the circuit court, on the same terms and conditions on which appeals may be granted to the circuit court in other cases, and on such appeals the case shall be tried de novo." These omissions clearly show that the statutes relied on were never intended to prescribe the only proceeding that shall be followed in contests for elections, but left other statutes consistent with them, and appropriate to govern in such cases.
In contests of elections the same object is to be gained, and the same purposes are to be subserved, by a new trial as in other cases in the county court. It is true that, in election as in all other cases, the parties “ought to obtain a speedy trial, conformably to the laws but in no case should the forms of law be made subservient to the purposes of injustice.
Practice as to certiorari.
In the motion filed by Aven in the county court he stated, among other things, that on the 24th of October, 1892, the day when the contest of his election by Wilson was heard, he “was unable to attend court by reason of his bodily infirmities, and that, while he was so disabled, * * * the attorneys to whom he had entrusted his defence in his cause were likewise unable to attend the court by reason of sickness and other unavoidable circumstances, all of which was properly brought to the knowledge of the court by proper motion ; yet, notwithstanding these facts thus known to the court, the hearing of this cause was proceeded with, which contestee says was an abuse of the power and the discretion of the court; * * * that he was legally elected to the office of county treasurer, and that, if given an opportunity, he can establish his right and title to said office.” Upon this statement, which was sworn to, the motion was granted. In this the appellee says the court erred, because the motion was not filed within three days after the hearing; that no notice was given to the contestant of the filing; and the presiding judge, not having heard the contest, granted, the motion without evidence of its contents. But this can avail nothing in this proceeding. If the county court had the jurisdiction to grant the new trial, as it did, and the statement of appellee as to the time of the filing of the motion, the failure to give notice, and the granting of it without evidence, be true, and the action of the court in that respect be irregular or illegal, it merely committed an error, and certiorari did not lie to correct it. If appellee had been aggrieved by the final judgment in the case, his remedy was by appeal. Gibson v. Superior Court, 24 Pac. (Cal.) 721; State v. City of Duluth, 60 N. W. (Minn.) 546.
The judgment of the circuit court is reversed, and the petition is dismissed.
Wood and Hughes, JJ., dissent.