Broadbent v. Keith

JAMES, J.

Plaintiff, as an elector of the city of Imperial, on April 15, 1910, filed with the county clerk of Imperial county a verified statement by which he sought to institute a proceeding to contest the election of defendant as marshal of said city. No citation was issued upon this statement or

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complaint, but on April 26, 1910, plaintiff filed a new verified statement setting forth grounds of contest, and upon May 17, 1910, a citation was issued thereon requiring respondent to appear in the superior court on the third day of June and make answer. At the time set for hearing respondent appeared and moved the court to dismiss the proceedings on the ground that at the time the first statement of contest was filed the board of trustees of the city of Imperial had not declared the result of the canvass of the votes for the office of city marshal. In support of this motion affidavits were filed showing that the result of the city election was formally declared by the canvassing board on the sixteenth day of April, 1910, or one day after the day when the first statement or complaint was filed. The superior court granted the motion and a judgment of dismissal was entered, from which an appeal has been taken.

A proceeding to contest the right of a person to an office is a special proceeding governed by those sections of the Code of Civil Procedure found in title II, part III, thereof. Section 1115 provides that when an elector contests the right of any person declared elected to an office, he must “file with the county clerk a written statement” setting forth certain facts, which statement “must be filed within thirty days after the declaration of the result of the election by the body canvassing the returns thereof. ” It is provided by section 1118 of the same code that within five days after the end of the time allowed for filing such statements (of contest) the county clerk must notify the superior court thereof, and that the court shall order a special session to be held on some day, not less than ten nor more than twenty days from the date of its order, at which session a hearing on the merits of the contest shall be had. Section 1119 provides that a citation shall be issued by the clerk requiring the person whose right to the office is contested, to appear at the time and place specified by the order of court for the hearing. Section 1122 then provides as follows: “The court must be governed, in the trial and determination of such contested election, by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable ; and may dismiss the proceedings if the statement of the cause or causes of the contest is insufficient, or for want