People ex rel. Wicks v. Jones

Citations

• 20 Cal. 50

Syllabus

<p>An action, under section three hundred and ten of the Practice Act, may f>e maintained against one in possession of an office to which he has not been duly elected, who holds a certificate of election proper in form from the board of election canvassers.</p> <p>The certificate of election is only prima fade evidence of right to an office—the real right or title comes from the will of the voters as expressed at the election—and one not having the real title, but only the color of title given by the certificate, holds “ unlawfully,” within the meaning of that term as used in the statute.</p> <p>The complaint shows by its averments that at the general election of 1861, an election for the office of District Attorney of the county of Sonoma was held in that county, and that the relator was, by the greatest number of votes cast in that county, elected District Attorney. The answer denies that relator was elected. The Court finds that such an election was held, and that at such election the relator received the greatest number of votes cast in the county for District Attorney. It is objected in the appellate Court that the complaint does not allege nor does the Judge find that “ Salt Point ” (the vote of which place decided the contest) was a “ precinct:” Held, that the right to the office depends upon the majority of the votes given in the county, and the allegations of the complaint and the findings of the Court upon this point are sufficient to sustain the judgment.</p> <p>A fact not directly averred in the complaint, but which in the pleadings and in the findings of the Court is incidentally recognized and treated as true and not in controversy, cannot be questioned for the first time in the appellate Court on objection to the complaint.</p> <p>In an action tried by the Court without a jury, judgment may be entered by the Clerk in vacation, upon the filing by the Judge of his findings and decision.</p> <p>Section ten of article six of the Constitution does not proh