Snibley v. Palmtag

TEMPLE, J.

This is an election contest for the office of supervisor of San Benito county. Appellant was declared elected by the board of canvassers. Despondent, being the opposing candidate, contested the election under the provisions of the Code of Civil Procedure, charging that illegal votes were counted for Palmtag, and that upon a proper count contestant would be found to have been elected.

Upon the trial, the court found that contestant and contestee had received the same number of legal votes, and ordered and adjudged that the alleged election of William Palmtag,

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"whose election to said office was so declared by the board of supervisors of San Benito county, state of California, on November 14, 1898, be and the same is hereby set aside, canceled, and annulled.” Defendant appeals, and contends that having found that there was a tie, and, therefore, that no other person had received a greater number of legal votes than the contestee, the election could not be annulled, but the contest should then be dismissed. But he also contends that the court committed errors in the count and erroneously found that appellant did not receive the highest number of legal votes.

After the appeal had been taken the respondent died, and the contestee now asks the court to remand the case, with directions to the trial court to vacate the judgment and dismiss the action. He takes the ground that the action abated upon the death of contestant. The estate of deceased, he argues, cannot be interested in the action; it will not be benefited by any possible judgment, and is not an elector, and the legal representative may not be such. The statute does not provide for the contingency of the death of the contestant, and no one can be substituted in his place.

The contest is a special statutory proceeding, and it often happens in such cases that the legislature has failed to anticipate and provide for all possible contingencies. Any elector may inaugurate the contest, and had Snibley not been the opposing candidate the same difficulty would have existed. And the trouble would have been the same if the court had found that Snibley had received a majority of the legal votes, or if the finding had been in favor of the contestee, and he had died after judgment. In either case it seems very hard if the survivor, against whom the judgment has been rendered, cannot appeal from it.