By motion, brief, and argument on rehearing appellee urges that in our original opinion we have assumed, without actually deciding, that section 4093 of the 1915 Code may be looked to for the agency by whom the reply could be served in this case, and contends that, even granting the correctness of our construction of the words, "in the same manner *Page 220 as process is now by law required to be served in an action at law" we must yet determine the question of the agency, and that a correct decision of that question requires service by the sheriff (or, in case of disqualification, by some one specially appointed.) We have become convinced that appellee is right in this contention.
[2] The election contest statute, in effect, makes the notice, answer, and reply process, but it is not a summons in a civil action, which seems to be the only form of process which said section 4093 authorizes to be served by a private individual. To be sure, a summons is process; but all process is not a summons. Both at common law and by statute process is required to be served by an officer, unless an exception be made such as that contained in section 4093. An election contest being a special proceeding, required to be strictly followed, such a statutory exception cannot be broadened by construction so as to cover a necessary step in the procedure, unless it be plainly apparent that it was so intended by the Legislature. In the present instance such intention does not appear. The attempted service of the reply, being unauthorized, was no service, and the trial court was correct in treating the issues as though there was no reply. This left undenied the new matter in the answer, from which, and from the allegations of the notice, it appeared that appellee received a clear majority of the legal votes cast at the election under consideration.
From the conclusion which we have now reached, it follows that our previous order should be set aside and the judgment of the lower court affirmed, and it is so ordered.
PARKER, C.J., and FORT, J., concur. *Page 221