
    [Civ. No. 147.
    Third Appellate District.
    December 30, 1905.]
    S. B. WILSON, Petitioner, v. N. D. ARNOT, Superior Judge of El Dorado County, Respondent.
    Election Contest—Vacancy in Office—Conditional Obdeb Extending Time fob Bill of Exceptions—Jurisdiction—Neglect of Con-testes—Mandamus.—Where, through neglect of the contestee to appeal within ten days after notice of judgment of the contestant of his election, his certificate became void, and thereafter the judge made a conditional order extending time to the contestee to present his bill of exceptions, the conditions of which he neglected to comply with, and took an unsuccessful appeal from the order, if the order was ineffectual in an election contest, as being without jurisdiction, or if it be considered valid, where, after affirmance of the order, the offer of the contestee to comply with the conditions was not sufficiently inclusive on his part, or where, as the result of his appeal, the conditions had become so changed that he could not comply therewith, he being still responsible for such conditions, no legal obligation rests upon the judge to settle the bill, and mandamus will not lie to compel him to settle and allow it.
    PETITION for mandamus to compel the settlement of a bill of exceptions by the judge of the Superior Court of El Dorado County. N. D. Arnot, Judge.
    The facts are stated in the opinion of the court.
    W. F. Bray, and W. C. Burgess, for Petitioner.
    Charles A. Swissler, and Abe Darlington, for Respondent.
   BUCKLES, J.

The petitioner is contestee in a contested election case for the office of superintendent of schools in El Dorado county. The case was tried in the superior court of said county and on June 12, 1905, judgment was entered in favor of the contestant, T. E. McCarty, and against the petitioner here. Notice of the judgment was duly given petitioner on June 17, 19.05, and on June 29, 1905, the county clerk issued to the said McCarty a certificate of election as superintendent of schools, and McCarty duly qualified on the last-mentioned date and demanded possession of the office. Thereafter, and on the same day (June 29th), petitioner filed his notice of appeal from said judgment and on July 1, 1905, filed an undertaking on appeal. Petitioner did not prepare and serve his bill of exceptions on said appeal within ten days after notice to him of the rendition and entry of said judgment. Neither did he apply for an extension of time, nor was any granted during the ten days. After the expiration of ten days, as aforesaid, the petitioner applied to said respondent, the Honorable N. D. Arnot, for further time in which to prepare, serve, and present his bill of exceptions in said appeal, and thereafter, and on July 7, 1905, the respondent made the following order: “The motion of the respondent Wilson for an order of the court extending his time to file and serve a bill of exceptions in said cause is granted upon the following terms, to wit: The respondent shall within eight days let the contestant into the possession of the office in controversy and permit the contestant to fully enjoy the emoluments thereof pending an appeal of this case to the district court of appeal and to the supreme court of the United States should said last-named appeal be taken. Before surrendering said office, as here required, the contestant McCarty shall give security to the respondent Wilson that if said appeals, or either of them, are successful, that the contestant will pay to the respondent within ten days after the coming down of the remittitur therein the same emoluments of the said office that the respondent would have been entitled to had he remained in said office during the time contestant shall have been in possession thereof, together with respondent’s costs on appeal. If said appeals, or either of them, are unsuccessful, respondent shall pay to the contestant, contestant’s costs on appeal. The respondent to give security to contestant for the payment of these costs. If respondent shall fail within eight days to do this, his motion for time to file and serve a bill of exceptions herein will be denied. Doing this, he will be granted ten days, and such additional time as may be necessary, within which to file and serve his bill of exceptions.”

On July 8, 1905, being dissatisfied with the terms imposed in said order, the petitioner appealed therefrom to this court on the ground of abuse of discretion on the part of the judge in imposing the terms he did. Pending that appeal and on July 15, 1905, petitioner presented his proposed bill of exceptions to the respondent for settlement, and the respondent refused to allow the same and indorsed thereon his refusal in the following words and figures: “I hereby certify that the foregoing bill of exceptions is correct; but I refuse to allow the same on the ground that the same was not filed and served within the statutory time, and that the conditions fixed by the court as terms upon which an extension of time to file and serve said bill of exceptions might be had have been declined and refused by contestee. ’ ’ On November 9, 1905, this court affirmed said order appealed from. (McCarty v. Wilson, ante, p. 154, 84 Pac. 295.) Whereupon the petitioner served the said McCarty with a written notice, offering to comply with the terms imposed in said order, to wit: to surrender the said office of superintendent of schools upon McCarty executing a bond, as in said order set forth. The contestant, McCarty, refused to give the bond referred to, whereupon the petitioner gave notice that he would apply to the court and move to have his said bill of exceptions allowed. It will be observed that petitioner’s offer is not an offer to comply with all the terms of said order. The order required Wilson to not only let McCarty have the possession of the office, but permit McCarty to enjoy the emoluments thereof and also to give him security for his costs on appeal. All that petitioner offered to do was to let McCarty have possession of the office. The application to have the said bill settled and allowed came on to be heard on December 2, 1905, when the court denied the application in the following words: “We cannot see that any useful purpose would be subserved by settling the bill of exceptions in this proceeding as now asked for.. The terms heretofore imposed by us were not agreed to, and' though counsel for the contestee are now willing to accept the terms imposed, the conditions now existing have so changed that the contestee is now unable to comply with the terms imposed in July last either in the letter or the spirit thereof. The application to settle the bill of exceptions is denied.”

Prior to the determination of the appeal from said order of July 7, 1905, by this court, and on September 29, 1905, . petitioner, who was holding the said office of superintendent of schools, applied to the supreme court for a writ of mandate to compel the county auditor to draw his warrant for the salary of himself as superintendent of schools for. the month of July, 1905. The writ was denied. (Wilson v. Fisher, Auditor, 148 Cal. 13, [82 Pac. 421].) If the conditions had changed in December, 1905, so that the terms imposed in the order of July 7th could not be carried out, the changed conditions were brought about through petitioner’s own acts. He was in default in not presenting his bill of exceptions within ten days after judgment, and in the light of section 1127 of the Code of Civil Procedure was not entitled to have it settled and allowed at all. He applied for an order extending his time and was granted such time upon terms that did not please him. He appealed from the order; meantime, as has been seen, he went to the supreme court asking a writ of mandate against the county auditor commanding that officer to issue a warrant for his July salary. The supreme court denied the writ, on the ground that because no appeal was taken by petitioner within ten days after-the judgment of June 12, 1905, annulling and setting aside his certificate of election, the said judgment became final and he had no title to the office, and that under the provisions of section 936 of the Political Code, he was not entitled to salary for July. In McCarty v. Wilson, ante, p. 154, 83 Pac. 170, decided by this court November 9, 1905, the only question decided, and the only one submitted, was that relative to the terms the respondent exacted for granting further time, in the order of July 7th, and we held the terms imposed were not unreasonable and that there was no abuse of discretion on the part of the judge in imposing such terms. It is difficult now to understand what could be accomplished by settling and allowing petitioner’s bill of exceptions, because under section 1127 of the Code of Civil Procedure, the judgment annulling petitioner’s certificate of election became final when he failed to take his appeal within ten days. The section is as follows: “Whenever an election is annulled or set aside by the judgment of the superior court, and no appeal has been taken within ten days thereafter, the commission, if any has issued, is void and the office vacant.” This is a special rule applying only to contest of election cases, and in my opinion the respondent had no power to grant further time when no appeal had been taken within the ten days, so that the order of July 7th, if attacked upon that ground, would be held void as having been made without jurisdiction. If, however, it could be considered a valid order, then it was clearly petitioner’s fault that he had not complied with the terms therein, and if conditions had so changed on December 2d that he could not comply, he is still responsible for such conditions.

There is no legal obligation resting upon the respondent to settle and allow said bill of exceptions, therefore the writ is denied.

Chipman, P. J., and McLaughlin, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1906.  