Lynip v. Buckner

By the Court, Belknap, J.: Opinion on motion to dismiss appeal and strike out statement: This is an election contest. The parties were candidates for the office of district attorney for Humboldt county at the general election of November, 1894. According to the official returns, Gen. Buckner received the highest number of votes, and a certificate of his election was issued. Thereafter a contest was inaugurated by respondent, Lynip, and such proceedings had as resulted in a judgment of the district court in his favor, and against Buckner. A motion for a new trial was made in the district court by appellant, and denied by that court; and from the judgment, and the order denying the motion for new trial, this appeal is taken. Respondent moves in this court to dismiss the appeal upon the ground that it was not taken within the time required by the statutes of the state for -an appeal to be taken in election contests. The motion is made upon the provisions of section 46 of the act relating to elections (Gen. Stats., sec. 1569), which reads as follows: “1569. Sec. 46. Whenever an election shall be annulled and set aside by the judgment of the district court, and no appeal has been taken therefrom within thirty days, such certificate, if any has been issued, shall thereby be rendered void, and the office become vacant.” The judgment was rendered February 20, 1895. The motion for new trial was denied upon the 11th day of May —more than thirty days thereafter. The judgment was to the effect that Lynip was the duly elected district attorney of- the county, and, upon his doing the acts required by the statutes to be done in such cases, was entitled to the office, *435 etc. This judgment is not one in which an election has been annulled and set aside. The result of the election has been reversed in this: that Lynip, who was shown by the returns to the board of county commissioners to have been defeated, was declared elected by the judgment of the district court. But the election itself has neither been annulled nor set aside, but, on the contrary, it has been upheld. If it had been annulled, the statute declares, the office becomes vacant, and, if there is a vacancy, it must be filled as required by law. We do not understand counsel to admit that a vacancy does exist, but if the provisions above quoted are applicable to this case, and the election had been annulled, a vacancy in the office must be the result. Our attention has been called to the meaning of the words “annulled and set aside,” as employed in section 1561, Gen. Stats. The section is as follows: “1561. Sec. 38. When any election held for an office exercised in and for a county, is contested on account of any malconduct on the part of the board of inspectors of any precinct, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of .the vote of such precinct shall change the result as to such office in the remaining vote of the county.” This provision is unimportant to the matter in hand. It states a principle applicable to all election contests; that is to say, that the person officially declared elected shall not be disturbed by vain and fruitless contests, and, unless a different result of the election can be reached, his election shall not be contested. Respondent also moves the court to strike out all of the record in the case, except the judgment roll, upon the ground that the district court had no jurisdiction of the case after the entry of the judgment. The statute relating to elections (sec. 1524, et seq., Gen. Stats.) confers original jurisdiction upon district courts in this class of cases (sec. 1563), and' provides that a certified copy of the judgment of the supreme • court may be used as proof in certain cases; but, with these' exceptions, it is silent upon the subject. Nothing is said, in' direct terms, upon the subject of new trials or appeals; and, under these circumstances, we must look elsewhere for .the-mode of procedure. The civil practice act was adopted long-before the passage of the act relating to elections. It pro *436 vides a mode for review upon motion for new trial or appeal in all cases tried by district courts, and in enacting the election law, it was unnecessary to provide for any further mode of procedure than the practice act furnished. The decisions from California to which we have been referred are inapplicable to our statute concerning contested elections. The motions are denied.