Batterton v. Fuller

Citations

• 6 S.D. 257
• 60 N.W. 1071
• 1894 S.D. LEXIS 152

Syllabus

<p>1. To authorize a candidate or person to institute an election contest in his own name under the provisions of section 1489, Comp, Laws, such candidate or person must state such facts in his notice of contest as would prima facie entitle him to the office, and he must also therein claim a right to the office himself.</p> <p>2. A notice of contest under said section, instituted by and signed only by a candidate in his own name, in which no facts are stated showing that such candidate is entitled to the office, and in which such candidate makes no claim of right to the office himself, is invalid, and.does not confer jurisdiction upon the court to hear and determine the same.</p> <p>3. A notice of contest, in which it is stated that the contestant was an elector of the county, was a candidate for the office, that the candidate whose election he contests received a greater number of votes than himself, and that said successful candidate was ineligible, does not state facts sufficient to entitle such contestent to the said office.</p> <p>4. An amended notice of contest, in which the contestant states that he is an incumbent of the office under an appointment thereto, made by the governor of the state, to fill a vacancy occurring prior to the election, and that he claims the right to hold said office by virtue of being such incumbent at the time of the election, taken in connection with the statement in the original notice of contest that the defendant was ineligible, states a new cause of action.</p> <p>5. Such, an amended notice of contest, allowed, filed, and served more than 40 days after the canvass of the votes for the election, was barred by the statute limiting the time within which election contests ma.y be instituted1 to 20 days after the canvass of the votes for the election; and the allowance of said amendment at the time it mas made by the court was error for which a new trial was properly granted.</p> <p>(Syllabus by the Court.</p>