Hull v. Miller.

not been paid, and were still subsisting liens upon the respective parcels of land on which they were imposed. There is also a proper prayer for judgment. A reference to section nine of the act in question, will show that this is all that the petition proper need contain. It is true that the petition must be verified, and have certain exhibits attached thereto, but any omission in respect to these matters is no ground for demurrer.

The objection that the petition should have contained a statement of facts showing that the preliminary notice required by section three of said act was duly given, is not tenable. The notice was no part of the petition; it was merely an exhibit, whose only office was to show that the court had jurisdiction of the case. Had it failed in any respect to conform to the provisions of the statute, a special motion would have been the proper mode of reaching the defect.

But this question in respect of the notice is set at rest by the finding of the court below. It is recited in the judgment "that due notice of the intended application for judgment has been given in the manner prescribed by law," and no proper foundation having been laid for reviewing this finding, it is conclusive, and cannot now be questioned. We see no reason for disturbing the judgment of the court below, and it must be affirmed.

JUDGMENT AFFIRMED.

Kane v. The People.

THOMAS KANE, PLAINTIFF IN ERROR, V. THE PEOPLE, EX REL., HENRY SNYDER, DEFENDANT IN ERROR.

1. Practice: SUMMONS. The appearance of a defendant for any other purpose than to challenge the jurisdiction of the court, is a waiver of all defects in the summons.

2. Quo warranto. An information filed by consent of the district attorney, and in his name, but not officially signed by him, held, no error.

3.

4.

——: JURISDICTION. The act relative to proceedings in cases of contested elections, does not deprive the district court of jurisdiction in cases of quo warranto. The provisions of the statute are merely cumulative.

: EVIDENCE: CONTESTED ELECTION. On the trial of an information by quo warranto it appeared from the poll books and returns of the judges of election, that the relator had a majority of all the votes cast, but that the board of canvassers had opened the packages of ballots, required by law to be sealed and deposited in the office of the county clerk, made a pretended recount thereof, and declared the respondent duly elected. The respondent offered in evidence the abstract so made, and the packages of ballots so opened, and offered to produce all the individual voters of the county, for the purpose of showing that he had received a majority of the votes cast by them. Held, that the evidence was inadmissible, the canvassers having no authority to go behind the poll books and returns and inspect the ballots.

THIS was an information in the nature of a quo warranto, filed in the district court of Cheyenne county, te test the right of Thomas Kane to hold the office of county treasurer of that county. On the trial of the cause before Hon. Samuel Maxwell, and a jury, L. Connell, the county clerk, was introduced as a witness, and testified: "I voted at the general election for a person for the office of county treasurer." Thereupon counsel for said Kane asked, "For whom did you vote?" Objected to as immaterial; objection sustained. Thereupon counsel for said Kane offered to produce other witnesses, for the purpose of showing that said Kane received a majority of the legal votes cast at said election for county treasurer, by producing all the individual voters of said county who

Kane v. The People.

voted for him at' said election, asking them how they voted for said office; which proposal the said court would not entertain, on the ground that such evidence would be irrelevant.

L. Connell further testified, "I am county clerk. I have in my possession the poll books and returns of the several precincts in this county of the election held on the 14th of October, 1873. (Poll books introduced in evidence, and showed that said Henry Snyder received for the office of county treasurer, eighty-three votes, and Thomas Kane, the defendant, seventy-eight votes.) These returns were received by me within the time requiring their return. The ballots were returned sealed up in packages. They were opened by the canvassers, and we found that Thomas Kane had a majority of the votes cast. The poll books and returns showed Snyder had a majority of the votes, but in counting the ballots returned, they gave Kane a majority, and the abstract of votes made by the canvassers was as to treasurer made upon that count. None of the poll books were rejected by the canvassers. (Abstract offered in evidence, and excluded.) There is no record in my office of a copy of the abstract on the books, and never was." Thereupon the defendant requested that said ballots might be brought into court and counted by proper persons in presence of the jury, but the court excluded the profert of such evidence, on the ground that the canvassers and clerk could not go behind the poll books and returns, and had no authority to inspect the ballots, to which ruling of the court, the defendant excepted.

Upon this evidence, under instructions of the court, the jury returned a verdict for the relator, and judgment of ouster being rendered against Kane, he brought the cause here by petition in error.

Charles H. Brown and J. M. Thurston, for plaintiff in error.

Kane v. The People.

I. The court had no jurisdiction, unless the information was filed by the district attorney. The law gives him discretionary powers, and the exercise thereof is an act judicial in its nature, and must be performed by him in his official capacity. Gen. Stat., 646, 871. High on Ex. Legal Remedies, 45. His official signature was required to the information, and the authority to affix it could only be delegated by the appointment of a deputy. Chapman v. Inhabitants 56 Me., 390.

II. Where an express remedy is given by statute, mandamus will not lie, and a party must resort to his special remedy. The same rule applies with equal force to quo warranto. High Ex. Legal Rem., Sec. 617. Cooley Con. Lim., 622. Tecumseh Town Site, 3 Neb., 367. A contestant at an election must pursue his statutory remedy; failing to do so he cannot proceed by quo warranto. Com. v. Garrigner, 28 Penn. Stat., 9. Com. v. Baxter, 35Id., 263. State v. Marlow, 15 Ohio State, 114. State v. Cockerel, 2 Rich., 6.

III. The returns of the canvassing board, and of the judges and clerks of election, are not conclusive. People v. Seaman, 5 Denio, 409. People v. Van Slyck, 4 Cow., 297. Cooley Con., Lim., 622. High Ex. Leg. Rem., Sec. 638. The question is who received the most votes? The court, therefore, erred in excluding the evidence offered by plaintiff in error.

M. B. Hoxie, District Attorney and John De Laney, for the relator, defendant in error.

I. The court had jurisdiction. State v. Fitzgerald, 44 Mo., 425. State v. St. Louis, 38 Mo,, 402 Hummer v. Hummer, 3 G. Greene, 42. People v. Holden, 28 Cal., 129.

Kane v. The People.

II. The evidence was properly excluded. The State v. Donnewirth, 21 Ohio State, 216. The People v. Cicott, 16 Mich., 294.

LAKE, CH. J.

I. The sole object of a summons is to bring the defendant before the court; and although irregularly, or even illegally issued, if there be an appearance for any other purpose than to challenge the jurisdiction of the court the defect will be waived. Cropsey v. Wiggenhorn, 3 Neb., 108. Crowell v. Galloway, same, 215. The defendant having answered to the merits thereby waived the objections which he had previously made to the summons, and it is not necessary to determine whether they were valid or not.

II. It was objected to the information that it was not filed by the district attorney of that district, and a motion to dismiss it on that ground was interposed. In overruling this motion it is insisted that the court erred. But this objection cannot be sustained. The record shows that the information was filed by consent of the district attorney and in his name, and he subsequently appeared in person and assisted in the conduct of the case. The course pursued was unobjectionable, and we see no cause for complaint on that ground.

III. The third objection is that the court had no jurisdiction of the case; or rather that inasmuch as the statutes provide a mode for contesting an election to this office, it, in effect, deprives the court of all jurisdiction by quo warranto, and can alone be resorted to. And it has been so held by the supreme court of Ohio. The State, ex rel., v. Marlow, 15 O. S., 114. The constitution of Ohio provides that "the general assembly shall determine by law, before what authority, and in what