CORSON, P. J.
This was an election contest, instituted under the provisions of the statutes of this state. A trial was had resulting in a judgment for plaintiff. A motion for a new trial was made by the defendant and granted by the court, and from the order granting such new trial the plaintiff appeals. The facts sufficiently appear from the notice and amended notice of contest, which are copied into this opinion.
On November 30, 1892, the plaintiff caused to be served upon the defendant a notice of contest, as follows: “(1) That at all of the times hereinafter mentioned plaintiff was, and now is, an elector of said Roberts county. (2) That an election was held in said county on the 8th day of November, 1892, and that plaintiff and defendant were both candidates for the office of county judge of said county, and that at said election plaintiff received for said office -406 votes, and defendant received 467 votes therefor, and claims the right to hold said office. (3) That upon a canvass of said votes by the canvassing board of said county on November 12, 1892, the defendant was declared duly elected to said office. (4) That said defendant was not at the date of said election, nor at the date of the iniation of this contest, learned in the law, as required by the constitution of the state of South Dakota, and was and is therefore ineligible to hold said office. Wherefore plaintiff prays that the defendant be declared ineligible to hold said office, and to have no right thereto, and that he be restrained and enjoined from entering upon the discharge of the duties of said office.” The same was verified in due form. To this notice of contest a demurrer was interposed by the defendant, but, as the same seems to have been abandoned, it will not be further referred to. On December 8th the defendant gave notice of a motion to dismiss said action or proceeding upon the following grounds: “That the notice of contest served herein was not properly served in this: that said notice of contest was not and is not signed by the district Or county attorney of said county, as required by section 1491 of article 2 of the Compiled Laws of the state of South Dakota.” In support of this motion the defendant served with his notice of the motion an affidavit of the state’s attorney of Roberts county, in which he states, in substance, that no application had been made to him by the plaintiff or any person in his behalf to institute the action or proceeding, and that he had not signed nor refused to sign the notice of contest. On December 28th the court denied the motion to dismiss the action or proceeding, holding that said notice was sufficient to confer jurisdiction upon the court. Upon December 31 the plaintiff gave notice of a motion for leave to amend his notice of contest, which reads as follows, so far as it varies from the former notice (paragraphs 2, 3, and 5 being the same as in the former notice):
“You will please take notice that the plaintiff will, and hereby does, contest your election to the office of county judge of said Roberts county at the general election held there in November, 1892, and your right to be elected to and take and hold said office, and that the grounds of such contest are as follows: (1) That at all the times hereinafter mentioned plaintiff was, and now is, an elector of said Roberts county, and at all of such times was, and now is, the duly appointed, qualified, and acting county judge, of said county, and claims said office for the term beginning the first Monday in January, 1893, for the reasons hereinafter stated. … (4) That plaintiff was at the date of said election a citizen of the United States, and had resided in the county and state for more than one year, was over twenty-five years of age, and was learned in the law, and had been duly admitted to practice in the courts of said state as an attorney and counselor at law … Wherefore plaintiff prays that the defendant be declared ineligible to be elected to or hold said office, and to have no right thereto, and that he be restrained and enjoined from entering upon the discharge of the duties of said office, or from in any way interfering with the plaintiff in his discharge of the duties thereof, and that the plaintiff be declared entitled to have and to hold said office in and for said county of Roberts for said term beginning on the first Monday in January, 1893, and for his costs.”
On January 11, 1893, this motion was granted. An answer was thereupon filed, and subsequently the case was referred to a referee, who found the facts substantially as alleged in the amended notice of contest, and stated in his conclusions of law in favor of the plaintiff, and which findings and conclusions of law were adopted by the court as the basis of the judgment.
In a motion for a new trial the defendant specified a large number of errors, but in the view of the case we take it will be only necessary to insert the following:
“(1) Insufficiency of the evidence to justify the decision of the court, and that said decision is against law. (2) Errors of law occurring in the proceedings and at the trial, and excepted to by the defendant. …
“Specifications of error: The following are the errors claimed by the defendant in the procedure in this behalf: (1) Error of the court in not sustaining defendant’s demurrer to the complaint. (2) Error in not sustaining defendant’s motion to dismiss the action. (3) Error in permitting plaintiff to file an amended complaint. … (19) Error in each of the findings of the referee in his conclusions of law as specified in his report in paragraphs one to five, inclusive, as follows, to-wit: First, That the plaintiff is entitled to maintain this action as a candidate at said election, and as a person claiming the right to hold said office. Second, That the defendant was not at the time of said election, or at the time of the commencement of the term of said office, or at the time of said trial, and is not eligible to the office of judge of the county court of Roberts County. Third, That the defendant Burt Fuller is not entitled to hold the office of judge of the county court of Roberts County. Fourth. That no person was elected as judge of the county court of Roberts county at the general election held on the 8th day of November, 1892, for the term of two years commencing on the first Monday of January, 1893. Fifth, That the plaintiff, J. J. Batterton, by virtue of his appointment and qualification as judge of the county court of Roberts County, South Dakota, is the present imcumbent of said office, and is entitled to hold said office until his successor is elected or appointed, as the case may be, and qualified.”
Numerous errors are assigned by the plaintiff on this appeal, but they may be considered together, as they all tend to the one point that the court erred in granting the new trial. The sections of the statute upon which this proceeding was founded read as follows:
“Sec. 1489. Any candidate or person claiming the right to hold an office contested, or any elector of the proper county desiring to contest the validity of an election or the right of any person declared duly elected to any office in said county, shall give notice thereof in writing to the person whose election he intends to contest, within twenty days after the canvass of the votes for such election, … which notice of contest shall be in writing, and shall set forth the facts and grounds upon which the contestant relies in his contest, and may be verified as a pleading in a civil action.”
“Sec. 1491. The contest provided for in this act may be brought by a candidate or person claiming said office, on his own motion, in his own name as plaintiff, but such contest cannot be brought by an elector without the notice is signed by the district attorney of the proper county, or upon his refusal to sign said notice of contest the contest may be allowed by the court or judge thereof.”
The learned counsel for the respondent contend that the court below erred in its ruling in denying the defendant’s motion to dismiss the action or proceeding on the ground that the notice of contest was not signed by the state’s attorney, nor filed by permission of the circuit court or judge, and that by reason of such error it was its duty to grant a new trial. They also contend that the learned circuit court erred in granting the plaintiff permission to file an amended notice of contest more than 20 days after the canvass of the election returns, the same constituting a new cause of action, and for such error it was the duty of the court to grant a new trial. They also contend that the court erred in adopting the conclusions of law of the referee, and holding that the defendant was ineligible to the office of county judge of Roberts county, and for such error a new trial was properly granted. There were other questions raised and discussed by counsel, not necessary now to be stated. Treating the questions presented in their order, the notice to dismiss the proceedings will be first considered.
The notice of contest was neither signed by the state’s attorney, nor his refusal so to sign alleged, nor that the contest was allowed by the court or judge thereof alleged. It will be observed from an examination of the notice of contest that the plaintiff makes no allusion to the fact that he is an incumbent of the office by appointment, and that he makes no claim to the office himself, but simply prays that the defendant be declared ineligible to hold the office, and that he...
