The herald., 1896-08-25
AN ELECTION CONTEST
Supreme Court Decision Settling ithc County
Clerk TangIe in Kern County


| The supreme court has handed down
decision in the contest for the office
| of county clerk of Kern county.
An election contest was instituted by
N. E. Packard, plaintiff and appellant,
against F. w. Craig, defendant and re-
spondent, and judgment went for the
defendant, from which judgment plain
tiff appealed, and also from the refusal
of the 'eourt to grant a motion for a
new trial, which Packard made, or at
tempted to make. This appeal was not
taken until more than sixty days after
the judgment was rendered.
The main point for reversal made
by the appellant is that the decision was
not justified by the evidence. But re-
spondent contended that the evidence
could not be reviewed, first, because the
appeal was not taken until sixty days
after Judgment was rendered, and. sec
ond, because in the procedure motion
for new trial could not be entertained.
He objected to any proceedings being
taken with reference to the motion for
a new trial, and one of the grounds for
denying it was that a motion for new
trial had no place in the action. The
supreme court holds that the contention
of the respondent that the evidence
cannot be reviewed is sustained
This question" says the supreme
court was thoroughly considered and
disposed of by the court in the case or
Dorsey VS.. Barry, Cal. 449 That case
reviewed the act of 1850. upon the sub
ject of contested election proceedings
to be found in Woods digest, 3S0-2. That
act was the same as the provisions of
the code of civil procedure upon the sub
ject commencing at section I'LL and eX-
tending to section 1927. In Dorsey VS..
Barry the court said: The act itself
a pprJlnlate D1n1a of 1lrnppG1lrp
leaving but little if anything, dependent
upon implication of the common law
powers of the court The court, after
reviewing the whole question, and say
ing that in any event the proceeding
would be void unless the special term
provided for in that act had been extern
ded, then says: Even in the event that
the court was still holding the special
term, the order granting the petitioners
motion for a new trial was without au
thority 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 de-
clares that the proceeding is summary
one, wholly statutory in it's nature, and
intended to be expeditions and not en-
numbered by the delays which would
be occaSioned by such proceedings as
motion for a new trial
Mr.. Hayne, in his work upon New
Trials, vol. l, par. s. says that from his
eXamina ton, the decision in Dorsey VS.
Barry has never been disturbed. and it
may, therefore, be taken to be the set
tied rule that there can be no motion for
a new trial of an election contest We
have not been referred to any case since
the decision in Dorsey VS.. Barry where
the court has been asked to entertain
a motion for new trial in such a case.
and it will be observed that in nearly all
the other special and summary statu-
tory provisions, express authority is
given TO use the proceeding of a motion
for new trial, while in the case of con-
tested election, the appealing party is
confined to an appeal from the judg-
ment. The cases cited by the appellant
are cases which merely involve the con-
stitutional right of this court to enter
tain an appeal from 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
ll26, code of civil procedure, provides
that: Either party aggrieved by the
Judgment of the court may appeal there
from 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 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 IL