Wilson v. Arnot

BUCKLES, J.

The petitioner is contestee in a contested election case for the office of superintendent of schools in El Dorado county. The case was tried in the superior court of said county and on June 12, 1905, judgment was entered in favor of the contestant, T. E. McCarty, and against the petitioner here. Notice of the judgment was duly given petitioner on June 17, 19.05, and on June 29, 1905, the county clerk issued to the said McCarty a certificate of election as superintendent of schools, and McCarty duly qualified on the last-mentioned date and demanded possession of the office. Thereafter, and on the same day (June 29th), petitioner filed his notice of appeal from said judgment and on July 1, 1905,

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filed an undertaking on appeal. Petitioner did not prepare and serve his bill of exceptions on said appeal within ten days after notice to him of the rendition and entry of said judgment. Neither did he apply for an extension of time, nor was any granted during the ten days. After the expiration of ten days, as aforesaid, the petitioner applied to said respondent, the Honorable N. D. Arnot, for further time in which to prepare, serve, and present his bill of exceptions in said appeal, and thereafter, and on July 7, 1905, the respondent made the following order: “The motion of the respondent Wilson for an order of the court extending his time to file and serve a bill of exceptions in said cause is granted upon the following terms, to wit: The respondent shall within eight days let the contestant into the possession of the office in controversy and permit the contestant to fully enjoy the emoluments thereof pending an appeal of this case to the district court of appeal and to the supreme court of the United States should said last-named appeal be taken. Before surrendering said office, as here required, the contestant McCarty shall give security to the respondent Wilson that if said appeals, or either of them, are successful, that the contestant will pay to the respondent within ten days after the coming down of the

remittitur

therein the same emoluments of the said office that the respondent would have been entitled to had he remained in said office during the time contestant shall have been in possession thereof, together with respondent’s costs on appeal. If said appeals, or either of them, are unsuccessful, respondent shall pay to the contestant, contestant’s costs on appeal. The respondent to give security to contestant for the payment of these costs. If respondent shall fail within eight days to do this, his motion for time to file and serve a bill of exceptions herein will be denied. Doing this, he will be granted ten days, and such additional time as may be necessary, within which to file and serve his bill of exceptions.”