Opinion
Appeal from a judgment of the Superior Court of Kern County and from an order refusing a new trial. Lucien Shaw, Judge.
COUNSEL:
J. W. Ahern, J. W. P. Laird, and Reddy, Campbell & Metson, for Appellant.
Alvin Fay, J. E. Patten, and N. E. Conklin, for Respondent.
JUDGES: In Bank. McFarland, J. Van Fleet, J., Garoutte, J., Henshaw, J., Temple, J., and Harrison, J., concurred.
OPINION
McFARLAND, Judge
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 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 was 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 would be occasioned by such proceedings as a motion for a new trial. The fact that the county court then had jurisdiction of the matter, while 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 was 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, and end where it ended; and, therefore, that that class of cases was not within the scope of the one hundred and ninety-third section of the practice act relating to new trials." We have been referred to and have been able to discover no subsequent case overruling or inconsistent with the cases above cited. Mr. Hayne, in his work upon New Trials, volume 1, paragraph 5, says that from his examination, "the decision in Dorsey v. Barry, supra, has never been disturbed, and it may, therefore, be taken to be the settled rule that there can be no motion for a [45 P. 1034] new trial of an election contest." We have not been referred to any case since the decision in Dorsey v. Barry, supra, where the court has been asked to entertain a motion for a new trial in such a case; and it will be observed that in nearly all the other special and summary statutory provisions express authority is given to use the proceeding of a motion for a new trial, while in the case of a contested election the appealing party is confined to an appeal from the judgment. The cases cited by appellant are cases which merely involve the constitutional right of this court to entertain an appeal from a judgment in a contested election case. We, therefore, hold that the court below was right in refusing to entertain the motion for a new trial in the case at bar. Section 1126 of the Code of Civil Procedure provides that "either party aggrieved by the judgment of the court may appeal therefrom to the supreme court, as in other cases of appeal thereto from the superior court "; and, therefore, an appeal from the superior court to the supreme court in a contested election case is subject to the provision that upon such appeal the point that the decision is not sustained by the evidence cannot be raised, unless such appeal shall have been taken within sixty days after the judgment. Therefore, in the case at bar we cannot inquire whether or not the judgment is supported by the evidence, and there is no doubt that the findings support the judgment.
The only question before us, therefore, is whether or not the court erred in admitting certain evidence offered by the respondent and objected to by the appellant. That evidence was of this character: The respondent called a number of persons as witnesses who were officers of election at several precincts in the county in which the election here involved took place, who testified that the elections at the said precincts were properly conducted, that the ballots were properly counted, and the tally sheets properly filled up, etc. Respondent also introduced in one or two instances the tally sheets themselves. We cannot say that such evidence was not admissible. Whatever weight might or should be given to such evidence, it certainly had some relevancy to the matters at issue, and cannot be said to be incompetent or immaterial. The fact which the appellant endeavors to show is that a count of the ballots themselves received by the court in evidence shows a majority for the appellant; but, under the views above expressed, that fact cannot be inquired into here. There is nothing in the findings themselves which shows that state of facts. Therefore, upon the face of the record as it presents itself to us in this case, we can see no reason for reversing the judgment.
The judgment and order appealed from are affirmed.