
    [File No. 6343.]
    GORDON HANSON, Contestant, v. EARL WALTER, Contestee.
    (259 N. W. 762.)
    
      Opinion filed March 28, 1935.
    
      Earl Walter (in pro. per), for appellant.
    
      
      Gordon Hanson, in pro. per. and B. L. Wilson, for respondent.
   Burr, J.

This action involves the office of state’s attorney for Burke county. According to the canvassing board Hanson received 1921 votes and Walters 1923. A contest was begun and the district court, after a recount of all of the precincts in the county, found Hanson had received 1911 votes and Walters 1907. Judgment was rendered declaring Hanson duly elected, and Walters appeals.

There are fourteen specifications of error, grouped around three general propositions, — that no proper contest was initiated; that the court erred in rulings during the conduct of the hearing; and that the court erred in the course pursued in recounting the votes.

The notice of contest is dated December 3, 1934. No issue is raised as to the notice itself; but contestee claims the verification is so defective that the validity of the contest notice was destroyed, and that the amendment of the verification made on December 21 came too late. The notice of contest is verified by the contestant and he says “that the same is true to the best of his own knowledge, information and belief,” During the hearing, after the contestee had objected to the jurisdiction of the court on the ground that no notice of contest as required by statute had been served, the court permitted the contestant to amend so as to state that the notice was “true of his own knowledge excepting as to matters stated on information and belief and as to those he believes them to be true.”

Section 1046 of the Comp. Laws 1913 requires the notice of contest to be “verified as a pleading in a civil action.” Section 7456 of the Comp. Laws 1913 requires that a verification made by a party to the action “must be to the effect that the same is true to the knowledge of the person making it, except as to those matters stated upon information and belief, and as to those matters he believes it to be true.” The verification was made by a party and therefore was defective. But there was no defect in the notice, itself. Section 1050 of the Comp. Laws says that in matters of contest “the court shall have power to order amendments to the notice and answer and to all other proceedings as provided in the Code of Civil Procedure.” Under the Code of Civil Procedure an amendment to correct a mistake like this is permissible. See §§ 7482 and 7483, Comp. Laws 1913.

Contestee says the notice of contest was not served upon him within the time required by statute. Section 1046 of Comp. Laws 1913 requires notice of contest to be given the contestee “within twenty days after the canvass of the votes of such election, which notice shall be served in the same manner as a summons in a civil action. But if the j)erson whose election is contested cannot be found and shall have ceased to have residence in such county or state, then the notice shall be served by leaving the same at the house where such person last resided, and if no service as above provided can be made, or if no such residence can be found in the state the district court or judge thereof may expressly direct the manner of such service, 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 shall be verified as a pleading in a civil action.”

The votes were canvassed on November 15. The contestant claims “that on the third of December and between such time up to and including the 5th of December the contestee could not be found.” The residence of contestee and family is in Bowbells. The sheriff made a return that he could not find the defendant, nor a member of his family upon whom to serve the notice, within Burke county. A showing was made to the district court to the effect that the defendant had left the state or “secreted himself for the purpose of evading service of the notice — .” Thereupon the court ordered the notice to be served on contestee by serving a copy upon his stenographer in his office; or by leaving a copy at his residence “by tacking a copy of said notice of contest on the front door of said residence.” This was done on December 4th but no copy of the order was served or tacked. When the contestee returned the notice was served upon him personally on December 7, 1934. Service was made strictly as required by the court, and within the twenty-day period.

In addition the motion for dismissal on the ground that the notice of contest was not properly verified and that no notice had been served within the time required by statute is included in the answer and cross complaint of the contestee. They are all parts of the same document. In this document the contestee denied the election of the contestant, alleged his own election and, as the notice of contest demanded a recount of 23 of the 40 precincts in the county, contestee demanded a recount of the remaining precincts. Contestee invoked the jurisdiction of the court. He asked the court to determine questions touching the merits and not relating to the jurisdiction. He thus appeared generally.

Contestee’s claim that no oath was administered to the contestant at the first verification is without merit, according to the record.

Contestee claims that the court erred in not requiring additional surety upon demand. When the notice of contest was drawn, one Geo. Hansen signed it as surety for costs. During the progress of the trial contestee objected to the surety and demanded that he be required to justify. We find no authority for this demand on the part of the contestee. Section 1053 of the Comp. Laws 1913 says: “Any person bringing a contest under the provisions of this article must before bringing the same furnish good and sufficient surety for costs as provided in the Code of Civil Procedure, and the obligation of such surety shall be complete by simply indorsing the notice of contest as surety for costs.”

This was done. The Code of Civil Procedure requires surety for costs where the plaintiff is a non-resident, or becomes a non-resident or is a foreign corporation. The only requirements of the surety are that he be a resident of the county where the action is to be brought and that he must be approved by the clerk. “His obligation shall be complete by simply indorsing the summons or signing his name on the complaint as security for costs.” § 7812. Additional security may be demanded “after reasonable notice to tbe plaintiff” and in that event “if on sncb motion tbe court is satisfied that tbe surety bas removed from tbis state or is not sufficient tbe action may be dismissed, unless in a reasonable time to be fixed by tbe court sufficient surety is given by tbe plaintiff.” § 7816. There is nothing in tbe record to show tbe surety bad removed from tbe state or that tbe court was satisfied tbe surety was not sufficient; nor is there intimation to tbis effect. Therefore no error was committed.

Tbe remaining specifications of error deal with tbe recount. Tbe court proceeded to count tbe precincts challenged by contestant. When tbe contestant rested tbe contestee attempted to dismiss bis cross complaint dealing with tbe remaining precincts; but tbe court proceeded to recount tbe votes in such precincts. Thus tbe court bold that all tbe precincts were to be counted. There was no error in tbis. Contestee was not prejudiced thereby. Tbe count of these precincts showed tbe contestant bad gained enough votes to more than offset tbe majority shown by tbe certificate issued by tbe canvassers, and-the court could well have considered tbe official returns correct as to tbe remainder of tbe precincts. As tbe recount did not alter tbe ultimate facts tbe contestee was not injured. Tbe pleadings demanded a recount of all tbe precincts. Tbe motion was addressed to tbe sound judicial discretion of tbe court and there was no error in denying tbe motion. Tbe recount showed tbe contestant bad received 1911 votes and tbe contestee 19 OY. No question is raised as to tbe accuracy of tbis recount — the contestee resting bis case upon tbe objections to tbe notice and service, and tbe rulings of tbe court during tbe bearing. Tbe judgment of the district court is affirmed.

Burke, Ch. J., and Morris, Christianson and Nuessle, JJ., concur.  