Budway v. Hollibaugh

WOOD (Parker), J. Contestant, Louis Budway, appeals from a judgment rendered in favor of defendant, Jonathan J. Hollibaugh, in an election contest.

Contestant filed with the county clerk a written statement of contest which set forth that at an election held on April 11, 1944, the contestant, defendant and three other persons were candidates for the office of city councilman of the city of Huntington Park, at which time two councilmen were to be elected; that the election was held and defendant received 1,502 votes, Wendell W. Schooling received 1,494 votes, contestant received 428 votes, and the other two candidates each received fewer votes than contestant; that on April 18, 1944, the city council canvassed the votes, and passed a resolution declaring that defendant received 1,504 votes, Wendell W. Schooling 1,500 votes, contestant 429 votes, and the other two candidates 418 and 356 votes respectively; that in said resolution it was declared that defendant and Wendell W. Schooling were duly elected; that thereafter they “were given the oath of office” and they “proceeded to exercise their office”; that Huntington Park is a city of the sixth class; that at the time defendant was sworn in as councilman “and at all times herein mentioned he was the duly elected, qualified and acting Assemblyman of the 52nd District of the State of California, and still is, and was therefore disqualified from becoming a candidate or of qualifying or taking the oath of office of Councilman of the said City.” The statement of contest included a prayer that it be adjudged that defendant was disqualified “from taking and assuming” the office of councilman, and that contestant “was the duly elected candidate.” The statement of contest was filed on April 20, 1944.

Defendant was directed by the court to appear on June [47523], 1944, for a hearing of the contest. Defendant made an affidavit, which was served on contestant, wherein he stated that he was the contestee and that he would appear at said time set forth in said order. In a recital which preceded the findings of fact, the court stated that the cause came on for trial on June 23, 1944, before the court without a jury; that both parties appeared; and that the court heard the testimony and examined the proof offered by the parties. The court found that the allegations of the contest were true, except that it was not true defendant was disqualified, by reason of being assemblyman, from becoming a candidate for, or taking the oath of office of, councilman of the city of Huntington Park. The court found further that defendant is a duly elected, qualified and acting city councilman of Huntington Park. ¡ j