Misch v. Mayhew

By the Court: The judgment of the court below is erroneous. The language of section 1116 of the Code of Civil Procedure, which fixes the time when the list of alleged illegal voters shall be served, is equivalent to a requirement that the opposite party shall have three days’ notice of the illegal votes which the party serving the list expects to prove at the trial. The case is, therefore, covered by section 12 of the same code, and a list served on the seventh of December could properly be relied upon and proven at the trial on the tenth of December. The judgment is reversed and the cause is remanded, and the County Court is directed to retry the issues made by the statement of the contestant and the answer of defendant thereto.