Packard v. Craig

McFarland, J. This is an election contest brought by Packard, plaintiff, against Craig, defendant, to determine the right between said parties to the office of county clerk of Kern county. Judgment went for the defendant, Craig, and plaintiff appeals from the judgment, and also from the refusal of the court to grant the motion for a new trial which Packard made, or attempted to make. The appeal from the judgment was not taken until more than sixty days after the judgment was rendered.

The main point for a reversal made by the appellant is that the decision is not justified by the evidence. But respondent contends, that the evidence cannot be reviewed here: 1. Because the appeal from the judgment was not taken until sixty days after it was rendered; and 2. Because in this procedure a motion for a new trial cannot be entertained. He objected to any proceedings being taken with respect to the motion for a new trial, and one of the grounds for denying it was that a motion for a new trial had no place in this action. The contention of the respondent that we cannot here review the evidence must be sustained.

This question was thoroughly considered and disposed of by the court in the case of Dorsey v. Barry, 24 Cal. 449. That case reviewed the act of 1850 upon the subject of contested election proceedings, to be found in Wood’s Digest, 380-82. That act was the same as the provisions of the Code of Civil Procedure upon the subject, commencing' at section 1111, and extending to section 1127. There are some few verbal differences between the said act of 1850 and the said provisions of the code, but substantially, and almost literally, they are the same. In Dorsey v. Barry, supra, the court said: “ The act itself provides a complete mode of procedure, leaving but little, if anything, dependent upon implication or the common-law powers of the court.” The [97]court, after reviewing the whole question, and saying that in any event, the proceedings would be void unless the special term provided for in that act had been extended, then said: “Even in the event that the court Avas still holding the special term, the order granting the petitioner’s motion for a new trial was without authority and void. The statute has not made provision for the re-examination of the issues of law or of fact in that court, but has expressly provided for the taking of an appeal.” The court declares that the proceeding is a summary one, wholly statutory in its nature, and intended to be expeditious and not encumbered by the delays which avouM be occasioned by such proceedings as a motion for a new trial. The fact that the county court then had jurisdiction of the matter, Avhile such jurisdiction is now in the superior court, does not affect the rule there declared. That decision was approved in Casgrave v. Howland, 24 Cal. 457, and the principle restated as follows: “In Dorsey v. Barry, supra, we held that the proceedings authorized by article VI of the act to regulate elections are special and summary, and that no remedy can be had under the provisions of that article, except such as is therein expressly or by necessary implication provided. We also held that a new trial Avas not authorized by the provisions of the article in question, and that the remedy of a party who is dissatisfied with the judgment of the county clerk is by appeal only.” In People v. Rosborough, 29 Cal. 417, the court, in distinguishing a proceeding in insolvency from a contested election case, say: “We held in Dorsey v. Barry, supra, relied upon in argument, that the jurisdiction in contested election cases was special, a.statute creation, that the proceedings were intended to be summary, and that the subject matter made it essential that they should be so in order to make them of any avail, and that the special procedure was withal so complete in itself that it was manifestly the intention of the legislature that the litigation should be kept to' the method which the act prescribed,