Fitzsimmons

At a special election held in Pacific Drove township, Monterey County, the plaintiff and defendant were candidates for the office of justice of the peace in the event that the then incumbent of the office should be recalled. The election resulted in the recall of the then incumbent, and upon a canvass of the returns, the defendant was declared elected to the office for the unexpired term. Subsequently plaintiff instituted proceedings in the superior court of Monterey County, under the provisions of part III, title II of the Code of Civil Procedure, contesting the right of the defendant 'to the office. The lower court rendered and entered judgment in favor of the plaintiff, declaring him to have been elected to the office, and directing that a certificate to that effect be issued to him by the county clerk. The defendant has appealed from the judgment.

A recount in open court of the admitted legal ballots cast at the election in question disclosed beyond dispute that one hundred and seventy-six votes were cast for A. M. Fitzsimmons, the plaintiff; two hundred and seventeen for Joseph Wilks, the defendant; and three votes for one R. M. Fitzsimmons. In addition, however, to the…