Doty v. Jenkins

SHAW, J.

This was a proceeding to contest the election of the defendant to the office of member of the board of supervisors of the fifth district of Sacramento County. The plaintiff had judgment in the court below, and the defendant appeals.

The original statement of contest was filed November 29, 1902. The allegation of the original statement showing the right of the contestant to maintain the contest was contained in paragraph three of the statement, and did not state that the contestant was an elector of the supervisorial district. On the last day of the trial the plaintiff, by leave of court, over the objection of the defendant, amended paragraph three of the statement of contest so as to make it read as follows, the words inserted by the amendment being italicized: “That plaintiff is now and for more than two years last past has been a resident and elector of the county of Sacramento, state of California,

and of the fifth supervisorial district therein

This amendment was made on the eighteenth day of December following the election in November, 1902, and within forty days after the return day thereof. The appellant contends that the amendment must be considered as taking effect on the day it was made, and is to be construed as an allegation that at that time the plaintiff was an elector of the district, and that it cannot be construed to mean that he had been theretofore such elector. From this appellant reasons that as section 1111 of the Code of Civil Procedure gives the right to contest only to one who is an elector of the district in which the office is to be exercised, the statement is insufficient to give a right of action or to give the court jurisdiction to entertain the same. An amendment to a statement of contest is to be construed by the same rule as an amendment to a complaint. Unless from the nature of the fact alleged, or

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otherwise, the contrary appears, it is to be deemed a statement of facts existing at the commencement of the action or proceeding. The amendment in question must be thus construed. It takes effect as if it had been originally incorporated in the statement. And even if this were to be considered as the filing of a statement at the date of the filing of the amendment, the court would still have jurisdiction, for it was within the forty days allowed for the initiation of a contest, and although the proceeding would be irregular it would not be void, nor would the irregularity be sufficient in this ease to require a reversal. No motion was made to dismiss the proceeding for want of jurisdiction. If the point had been made the contestant could then have begun new proceedings. By allowing the time to lapse, the contestee must be deemed to have appeared to the contest as a new proceeding, if it is necessary to consider it such, and to have waived any objection to the manner in which he was brought before the court. There is nothing in the objection that the court did not grant leave to make the amendment in the form in which it appears. In allowing amendments the court does not usually take pains to state in exact terms the allegation to be allowed. It is clear that the only purpose of the amendment was to make the statement show that the plaintiff was entitled to maintain the proceeding, and that both court and counsel, in speaking of the matter, were referring to such an amendment as would be effectual for that purpose, and intended precisely such an amendment as the contestant made.