Treanor

This is a contest over the office of county recorder of the county of Santa Clara, arising out of an election for that office held in November, 1902. Upon the returns of the election boards the board of election canvassers declared that Thomas W. Treanor had received the highest number of votes for said office and was elected, and a certificate of his election was issued and delivered to him. Thereupon C. R. Williams, who had been a candidate for said office at said election, duly instituted this contest. The court below found that Williams had received 4,004 legal votes, and Treanor only 4,001 legal votes, and rendered judgment for Williams. From this judgment Treanor appeals.

It appears from the record that the court examined all the votes that had been received at the election, and rejected a great many that had been counted by the election boards for the contestee, Treanor, and also rejected a large number of votes which had been so counted for contestant, Williams. It was stipulated that none of the ballots offered in evidence need be copied into a bill of exceptions or statement, but that all of the ballots objected to by either of the parties should be withdrawn from the…

I dissent. The finding that Treanor received only 4,401 votes is in conflict with the fact clearly established by the pleadings that he received 4,862 votes. If the evidence established the fact as found, the pleadings might have been amended to conform to the proofs, but they were not amended, and must prevail. I cannot see any grounds for holding that the case was tried upon any theory as to the effect of the pleadings which precludes the contestee from raising this objection to the findings. No doubt it is technical, but the whole contest is based upon grounds equally technical.

Rehearing denied.

I concur in the judgment on the ground that- the case having been tried and submitted to the court below on the theory that the pleadings did not contain a conclusive admission that the contestee, "Treanor, received 4,862 legal votes, it is too late in this court to present a differ ent construction of the pleadings, and claim here, for the first time, that the contestant is bound by the admission. (King v. Davis, 34 Cal. 106 ; Lee v. Figg, 37 Cal. 336 ; Hutchins v. Castle, 48 Cal. 156 ; Hughes v. Wheeler, 76 Cal. 230 ; Sukeforth v. Lord, 87 Cal. 403 ; Willey v. Crocker etc. Bank, 141 Cal. 518 .) I do not agree with the construction put upon the pleadings in this respect in the principal opinion. I concur in all other points.

99 Am. Dec. 271 .