Abbott v. Hartley

HENSHAW, J.

This is an election contest over the office of justice of the peace of the eighth judicial township of the county of Contra Costa. By the official returns it appeared that the appellant, A. C. Hartley, had received a plurality of thirty-three votes, and on a recount of the ballots the court found and declared the contestant elected by a plurality of five votes.

[485]

The complaint charged that the contestant had received a higher and greater number of votes for the office than had the contestee Hartley, “but that notwithstanding thereof, through and by the carelessness, negligence, and malconduct of the boards of judges of each and every of the said four election precincts comprising said eighth judicial township and of the clerks thereof, in canvassing and counting the votes given at said election, ... it was erroneously and wrongfully made to appear from said returns that said A. C. Hartley had received the highest number of votes." Upon this allegation appellant contends that his motion to dismiss the contest should have been granted, because the grounds of contest were not alleged with sufficient certainty to advise the defendant of the particular proceeding or cause for which the election was contested. Section 1115 of the Code of Civil Procedure provides that the particular grounds of such contest must be specified. But in this connection section 1117 declares that 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 the election was contested. The certainty of allegation required by the statute in these cases is not, and from the nature of the action could not reasonably be expected to be, the highest degree of certainty known in pleading.

(Minor

v.

Kidder,

43 Cal. 229.) There was sufficient in the grounds of contest here set forth to apprise the contestee of the nature of the attack which was made, and the proof was the usual proof in such cases—an inspection of the ballots and objections to certain of them as containing distinguishing marks. There was nothing in this line of proof that was not in strict accord with the allegations of the contestant—nothing that the contestee could not have anticipated and foreseen; and even if such had been the ease, upon his application, time would have been granted him to meet the case upon the merits.