Fleming v. Ingalls

SHAFTER, J. This is an appeal from the judgment of the county court of Amador county confirming the election of the defendant to the office of supervisor for supervisor district No. 1 in said county.

The appellant alleges in his statement of contest that he is a qualified elector of said supervisor district No. 1, and was such qualified elector at the date of the general election in September, 1865. The act relating to elections (Hitt. Dig., art. 5, p. 2471) does not require the defendant in a proceeding like the present to put in an answer to the complaint of the contestant, and all the allegations are therefore to be taken as denied, including the allegation of the contestant’s capacity to prosecute: Dorsey v. Barry, 24 Cal. 449; Searcy v. Grow, 15 Cal. 118. The defendant in this case, however, filed an answer in which the averment that the contestant was a qualified elector of supervisor district No. 1 was directly denied. The case was submitted without any evidence having been introduced to prove the truth of .the averment, and it follows that the conclusion of law arrived at by the court and on which the judgment is based is free from objection.

Judgment affirmed.

We concur: Sawyer, J.; Currey, C. J.; Rhodes, J.; Sander-son, J.