Colorado § 1-11-214 - Trial and appeals in contests for county and nonpartisan elections.

§ 1-11-214. Trial and appeals in contests for county and nonpartisan elections.

(1) Immediately after the issue is joined, the district judge shall set the date for trial, which shall be not more than twenty days nor less than ten days after the issue was joined. The trial shall take precedence over all other business of the court. Any depositions to be used in the trial may be taken upon four days' notice before any officer authorized to take depositions. The testimony at trial may be made orally or by depositions. The district judge shall cause the testimony to be taken in full and filed in the cause. The trial shall be conducted according to district court rules and practice.

(2) An appeal from the judgment may be taken to the supreme court, in the same manner as other cases tried in the district court. The appeal shall be filed, the bill of exceptions settled, the bond for costs executed and filed, and the record transmitted to the clerk of the supreme court within twenty days from the date the judgment is entered. The supreme court shall advance the case to the head of the calendar and shall hear and determine the matter with all reasonable dispatch.

Source: L. 92: Entire article R&RE, p. 792, § 14, effective January 1, 1993.

Editor's note: This section is similar to former § 1-11-211 as it existed prior to 1992.

Cross references: For depositions, see C.R.C.P. 26 to 37; for trial of contested elections, see C.R.C.P. 100.

ANNOTATION

I. General Consideration.

II. Trial.

III. Appeal.

I. GENERAL CONSIDERATION.

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

II. TRIAL.

Purpose of fixing day for trial. This section requiring a judge, in an election contest case, to fix a day for trial not more than twenty days after the issue is joined is for the purpose of enabling a speedy trial and is for the benefit of both parties. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

But this requirement may be waived by both parties consenting to fixing the date of trial at a later date. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).

However, there is no specific provision for a change of the place of trial. Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).

Nor is there a provision for an application for calling in another judge to try the case upon the ground of prejudice or partiality of the presiding judge. Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).

And so, in the absence of any such authority, the rules of civil procedure should be followed. Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).

Under the rules, a party has not the absolute right to have his cause tried by a judge other than the regularly elected and presiding judge of the court on the alleged ground of the latter's prejudice. The matter lies in the sound discretion of the judge to whom the application is made, and his decision is not reviewable unless an abuse of discretion is shown. Doll v. Stewart, 30 Colo. 320, 70 P. 326 (1902); People ex rel. Lindsley v. District Court, 30 Colo. 488, 71 P. 388 (1903); Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).

Furthermore, an election contest may be tried notwithstanding a change of judges after its commencement, though the successor must conduct the trial de novo. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890); Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).

And by the words "other cases" must be understood ordinary civil actions. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).

But it is not "according to the rules and practice" in the trial of ordinary civil actions for one judge to hear the evidence, or a part thereof, orally, and then for another judge to render a finding and judgment upon such evidence, however perfectly the same may have been preserved. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).

The object of requiring testimony to be preserved is for convenient reference afterwards, or for use on appeal, or as a deposition in case a second trial should be had when witnesses should have died or removed from the county. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).

Where an election contest is dismissed by contestant, over the objection of the contestee, after answer and replication are filed, such dismissal is not a bar to another contest depending on the same facts. Freas v. Engelbrecht, 3 Colo. 377 (1877); Hallack v. Loft, 19 Colo. 74, 34 P. 568 (1893); Martin v. McCarthy, 3 Colo. App. 37, 32 P. 551 (1893); Denver & R. G. R. R. v. Iles, 25 Colo. 19, 53 P. 222 (1898); Bd. of Comm'rs v. Schradsky, 31 Colo. 178, 71 P. 1104 (1903); Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).

III. APPEAL.

Limitation upon appeals not repealed by provision for review. Provision that writs of error (now writs on appeal) to any inferior tribunal shall be the only method for review by the supreme court of any action or proceeding, and repealing all statutes providing any other method or procedure for review, did not repeal the 20-day limitation upon appeals of election contest decisions. Sitler v. Brians, 126 Colo. 370, 251 P.2d 319 (1952).

Hence, the attempted review of an action to contest election not docketed in the supreme court within 20 days from the date of judgment is not sought in apt time and a motion to dismiss should be granted. Sitler v. Brians, 126 Colo. 370, 251 P.2d 319 (1952).

Moreover, an application to advance a cause to the head of the calendar in the supreme court will not be considered until the abstract and all the briefs have been filed in accordance with the rule of court and the case is ready for submission. Dickinson v. Freed, 24 Colo. 483, 52 P. 209 (1898).

And objections of contestor not presented by the verified statement of contest cannot be considered on review. Israel v. Wood, 98 Colo. 495, 56 P.2d 1324 (1936).

When dismissal judgment must be affirmed. If the dismissal of an election contest is proper upon any ground, whether or not the trial court relied thereon, the judgment must be affirmed. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).

And the reason assigned by the trial court may in itself be insufficient to warrant the judgment, but if upon other grounds the judgment is correct, it will not be reversed because of faulty reasoning. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).

Thus if a statement of contest is insufficient to justify further proceedings, then the judgment of the court dismissing the action should be affirmed, notwithstanding the fact that no motion was presented in the trial court challenging the sufficiency of said statement and no specification of points with relation thereto appears in the record. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (195l).