Opinion
[Syllabus Material] Rehearing (Denied, Granted) 34 Cal. 273 at 276.
Appeal from the County Court, Tuolumne County.
This was a case of contested election for Supervisor of District Number Three, Tuolumne County.
The County Court decided in favor of the defendant by a majority of two votes, and rendered judgment accordingly. In reaching this result, the votes of L. Meyer, Lewis Fattar, Geo. Diller, John Jarnegan, and Valentine Pittorff, cast for plaintiff, were rejected, while the votes of M. R. Whitford and W. G. Smith, cast for defendant, were allowed. The County Court also allowed to be counted for plaintiff the supposed votes of Larkin, Gonsalves, and Haas, who did not in fact vote, although they severally offered to do so, except Haas, but on the trial testified that they would have voted for plaintiff had they been allowed to do so. The Court below held that their votes had been improperly rejected. The testimony in respect to W. G. Smith's qualifications as an elector, showed that he was a naturalized citizen of the United States; his name was on the Great Register and on the poll list, but his name had been put on the Great Register without the production of his naturalization papers, or his own testimony alone as to the loss of said papers and his citizenship.
The plaintiff appealed from the judgment, and filed a statement, setting out the rulings of the Court in the matter of the rejection of all said votes cast for appellant, also the allowance of all said votes for respondent, together with the evidence pertinent thereto. The respondent offered, by way of amendments, the said ruling and decision of the Court as to the allowance to appellant of the said supposed votes of Larkin, Gonsalves, and Haas. The amendments were allowed by the Court below; and in this Court appellant moved to strike them out as irrelevant and impertinent to the matters contained in appellant's statement.
COUNSEL:
H. P. Barber, for Appellant, argued that the matters contained in the statement respecting alleged errors of the Court below, made in favor of appellant, had been improperly introduced by way of amendment in the record, and should be stricken out on motion. That as respondent had taken no appeal, this Court could not take notice of any errors except such as were properly broughtup by appellant for review; and cited Jackson v. Feather River Co. , 14 Cal. 19; Walls v. Preston , 25 Cal. 61; Hutton v. Reed , 25 Cal. 482.
Edwin A. Rogers, for Respondent.
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
By the Court, Sanderson, J., on petition for rehearing:
It does not follow that points have been overlooked because they are not specially mentioned. What we said as to Whitford's vote is also applicable to Fattar's. Neither was on the poll list. Neither, therefore, was entitled to vote. It is so expressly provided in the twenty-ninth section of the Registry Act. Having said this as to Whitford's vote, there would seem to have been no special occasion for repeating it as to Fattar's. The fact that Fattar's name was first entered on the poll list and then afterwards erased by the Board of Registration, can make no difference. The result is the same. His name was not on the poll list on the day of the election, and therefore he was not entitled to vote. Under the twenty-fourth section, the Board of Registration, at their final meeting, commenced on the third day next preceding the election, are expressly required to revise the poll list and to erase the names of all persons not then actually residing in the district, or who are not qualified electors, or are not for any reason entitled to remain enrolled. This the Board did in Fattar's case, and the result was the same as if he had never been enrolled.
The Court did not err in allowing the respondent's amendments to the appellant's statement on appeal. The respondent has a right to show that the errors complained of by the appellant were without prejudice. To do that, if necessary, he may show that votes in his own favor were erroneously rejected by the Court below. Any other rule in this class of cases would render them interminable, whereas these actions are intended to be summary and to be brought to a final conclusion as soon as possible. To that end the whole case should be brought here on appeal, so that it may be finally settled without further litigation, if it can be done. Not only the interests of the parties, but those of the people, who are also concerned in this class of cases, demand this practice.