Keller v. Chapman

34 Cal. 635

• Court: California Supreme Court
• Decided: July 1, 1868
• Status: Published

Opinion

By the Court, Rhodes, J. .*

Proceedings instituted to contest the election of county officers are special and summary in their character. (Saunders v. Haynes, 13 Cal. 150; Whitney v. Board of Delegates, 14 Cal. 503; Searcy v. Grow, 15 Cal. 117; Dorsey v. Barry, 24 Cal. 449; Gasgrove v. Howland, 24 Cal. 457.)

The contestant is not permitted to take judgment by default. (Searcy v. Grow; Dorsey v. Barry, supra.) He must, therefore, prove the allegations of his statement. He failed to prove that Howard received any votes except at the precincts the returns of which were rejected by the Court, and certain others which were in controversy, at which the respondent received the majority of the votes. This error is fatal.

The rejection by the County Judge of the returns of the election held at the Half-Way House Precinct, and at San Juan Precinct, on account of irregularity in the appointment of certain of the officers of the election, cannot be sustained without overturning the doctrine of Sprague v. Norway, 31 Cal. 173, as it does not appear that any injurious results accrued therefrom, either by the reception of illegal votes or the rejection of legal votes, or that either of the candidates lost or gained votes thereby.

In Dorsey v. Barry we commented upon section sixty-two of the Election Act, and held that the provision that the Court “ may adjourn from day to day until such trial is ended, and may also continue such trial before its commencement to any time not exceeding twenty days, for good cause shown,” etc., precluded the Court from ordering any other continuances than such as were therein provided for. The summary nature of the proceedings is inconsistent with the exercise of the general discretionary power of granting continuances possessed by Courts in civil actions. The expression of the particular mode and time of continuance is exclusive of all non-enumerated modes and times. The continuance from the sixth of the month, when the cause was on trial, to the thirteenth of the same month, against the objections of the respondent and without an affidavit showing cause, was unauthorized, and operates as a discontinuance of the proceeding.

Judgment reversed.