Dickinson v. Van Horn

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was a proceeding before the County Court, in which the election of defendant, as clerk of Shasta county, was contested by the plaintiff. According to the certified returns from the several election precincts, the defendant received one thousand and seventy-eight, and the plaintiff one thousand and seventy-seven votes, and thereupon the certificate of election was granted [210]to the defendant. Upon the trial, the Court rejected fourteen votes, as illegal, from the votes counted for the defendant, and twelve from those counted for the plaintiff, leaving the plaintiff a majority of one. The defendant then moved for a new trial, which was granted, and from this order, the plaintiff appealed.

The first point raised by the appellant is, that the statement for a new trial was not agreed to by plaintiff, and not settled by the Judge.

It is clearly stated in the record, that on the trial, the parties read in evidence certain depositions and other papers on file, and that a certain witness, whose name is given, was examined by the defendant. The depositions and papers read by each party are properly described in the record. The statement for a new trial contains the grounds upon which the defendant intended to roly; also, the evidence of the only witness examined orally in Court, and a statement that the defendant would refer to the evidence on file, and the pleadings in the case. A copy of this statement was duly served upon the counsel of plaintiff, as appears from their written acknowledgment at the foot of the statement. Both parties appeared at the argument upon the motion for a new trial; and in the order granting the same, and which is signed by the Judge, it is recited that the defendant “ moved the Court to grant a new trial for cause set forth in the statement herein filed.”

The learned counsel for plaintiff have referred us to the cases of Linn v. Twist and others, 3 Cal. Rep., 89, and Harley v. Young, 4 Cal. Rep., 284.

But these cases would not seem to be in point, as it does not appear that the statement was anywhere referred to in any part of the record signed by the Judge. These decisions were made before the three hundred and thirty-ninth section of the Code was amended in 1855. We are not disposed, therefore, to extend the principle of the case of Linn v. Twist to any case not strictly parallel in its substantial circumstances. It is true, that the provisions of the three hundred and thirty-ninth section apply only to statements on appeal. But they contain principles that, in some measure, by parity of reasoning, would apply to statements for new trials.