Allen v. Cryer

CONREY, P. J.

Section 328 of the charter of the city of Los Angeles, relating to primary nominating elections, provides as follows: “In the event that any candidate for nomination to any office for which only one person is to be elected shall receive a majority of the votes cast for all the candidates for nomination to such office at such primary nominating election, the candidate so receiving such majority of votes shall be deemed to be and declared by the council to be elected to such office; ...” On the fifth day of May, 1925, at the regular primary nominating election, George E. Cryer was one of six candidates for nomination for the office of mayor. Thereafter in due course the city council canvassed the returns of said election and declared that George E. Cryer was elected at said election as such mayor of the city. Thereafter the contestant, Edna Allen, an elector of the city, filed in the superior court a written statement of contest of said purported election. The court having thereafter sustained a demurrer to the statement of contest, and having at the same time granted a motion to dismiss said statement, judgment of dismissal of the proceeding was entered. The contestant appeals from the judgment.

Section 1115 of the Code of Civil Procedure prescribes the facts necessary to be set forth in a statement of election contest. Without question, the statement of contest shown in the record here was sufficient, except that it is claimed

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that it did not comply with the requirement that such statement shall set forth “the particular grounds of such contest.” Section 1117 of-the Code of Civil Procedure reads as follows: “No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which such election is contested.”

The amended statement of contest in this proceeding sets forth the grounds of contest in the following paragraph, numbered IV: “That petitioner herein, said elector, is informed and believes and states on information and belief, that in each of said precincts set forth and mentioned in said exhibit ‘A’ at which voting was had on said May 5, 1925, for the office of Mayor, there was malconduet on the part of the board of judges and of each member thereof, in that they and each of them counted ballots which were cast at said election for the said George E. Cryer for mayor, which were not intended to be cast for him, which said ballots had been at said election lawfully cast for such other candidates; and, furthermore, disqualified and threw out ballots and failed to count the same for other candidates, which said ballots had been at said election lawfully cast for such other candidates; and thereby procured the said George E. Cryer to be declared elected to the office of Mayor of the city of Los Angeles, when he had not received the number of votes necessary and proper for him to have received to have been so declared.”