Preston v. Culbertson

Citations

• 58 Cal. 198

Syllabus

<p>Contest of Election—Amended Complaint or Statement—Relation— Limitation of Action.—In the contest of an election the “statement” or complaint (Code Civ. Proc. § 1115) omitted to allege the date of the “return-day” of the election, but afterwards an amended complaint was filed wherein the “return-day” was alleged as of a date more than forty days prior to the filing of the amended complaint, but less than forty days prior to the filing of the original complaint.</p> <p>Held, that the amended complaint, as it did not allege a cause of action against any new party, related to the commencement of the contest, and was therefore not open to the objection that it was filed more than forty days after the “return day.”</p> <p>Id.—Complaint or Statement—Pleading—Jurisdiction—Practice.— Held, further, that § 1115, Code of Civil Procedure, does not require that the written “ statement” or complaint shall show by averment that it has been filed within the forty days; and that the objection that the complaint has not been filed within the statutory time, is therefore a matter of defense to be made by answer in the nature of a plea to the jurisdiction, or to be taken advantage of by motion to dismiss the proceeding.</p> <p>Id.—Qualification of Voter—Naturalization—Court of Record— Registry.—Upon the trial of the contest evidence was' admitted by the Court to show that three registered voters were not citizens of the United States, and the Court so found:</p> <p>Held, that the evidence was admissible; that with reference to two of the voters the evidence of naturalization was suspicious, and the finding of the Court should not be disturbed; and in the case of the third—it appearing from the certificate introduced, that he had been naturalized in the Police Court of New Bedford, a Court having a clerk and seal, and for aught that appeared common law jurisdiction—that the Court erred in rejecting his vote.</p> <p>Id.—Place of Voting—Irregularity.—The polls for the J-precinct were