On Motion for Rehearing.
LEAHY, District Judge.A motion for a rehearing has been filed, again urging upon ús the proposition-that the notice of contest did not state a cause of action, and that therefore the district court did not have jurisdiction of the subject-matter. We have carefully re-examined the transcript and briefs, and are thoroughly satisfied that the notice of contest did state a cause of action, as was distinctly held by the trial court. The allegation in the notice of contest, in paragraph 16 thereof, names 111 persons who voted at said election, and whose votes were counted for the con-testee, and who are alleged to have been disqualified voters, on the ground.that they were not citizens of the United States, and had not been bona fide residents of New Mexico for 12 months, nor of Curry county for 90 days, nor of the precinct where they voted for 30 days, next preceding the election, and were under the age of 21 years, and were not legally registered, and that the counting of said votes for the contestee affected the result of the election. It appears that upon the face of the returns the contestee received a majority of a less number than the number of alleged illegal votes cast for him, so that upon the face of the returns and the allegation a cause of action was stated, and the result of the election was changed by the counting of the alleged illegal votes.
It is true that some more or less extravagant and general allegations are made in the notice of contest, to the effect that fraud was practiced in all of the precincts in the county of a character which might tend to vitiate the election. Nevertheless, these . allegations are so general as to be of doubtful effect as a pleading in a contest of election, and do not change the character of the notice, so as to deprive the contestant of the • benefit of specific allegations above mentioned. We have, then, a notice of contest specifying a legal cause for complaint, which would, if true, change the result of the election.
It is further urged that the district court never acquired jurisdiction of the subject-matter of the contest, because the record fails to disclose the evidence of the service of a copy of the notice of contest upon the con-testee. The claim is not made that the notice of contest was not in fact served upon the contestee within the time required by law, but the claim is made that there is no evidence .of the same in the record, and that this is jurisdictional. The error in this argument is to be easily demonstrated. The district court is, by statute, clothed with the general jurisdiction of election contests. Upon the filing in the office of the clerk of the district court of a notice of election contest, the district court at once acquires jurisdiction of the subject-matter of the contest. This must be true of election contests, the same as it is of any other subject within the general jurisdiction of the district courts. The district court, of course, has no jurisdiction to proceed to hear and determine contests until it has acquired jurisdiction of the person of the contestee. This is acquired, under the statute, by the service upon the contestee of a copy of the notice of contest, in case the contestee does not see fit to submit himself to the jurisdiction of the court. But in this ease, as in other cases, there is nothing to prevent a contestee from appearing in court and answering the notice of contest without the service of a copy thereof upon him. A litigant may always confer jurisdiction of his person upon the court by his own assent or conduct. This the contestee in this case has done, and did within 15 days after the filing of the notice of contest in the office of the county clerk. No conclusion can be drawn from any of the terms of the statute on this subject to the effect that service upon the contestee is necessary to confer jurisdiction of the subject-matter of the contest. It would be a curious and anomalous situation if such a requirement were to be established. The district court, therefore, had complete jurisdiction of the subject-matter and the persons involved in this contest.
It is reiterated in the briefs in support of the motion for a rehearing that the court was correct in allowing the filing of an amended answer, specifically denying the allegations of the notice of contest, after the time had expired within which an answer could be filed by the contestee. We are well satisfied with our conclusion in the opinion already filed. Both from an examination of the terms of the statute itself and from the soundness of its interpretation in Bull v. Southwick, 2 N. M. 321, that there was no power vested in the district court to allow the filing of the amended answer. That the statute is a statute of limitations, and controls both the parties and the court, we are well satisfied, and this has been the uniform holding of this court ever since the Bull-Southwick case.
It follows that the motion for a rehearing should be denied; and it is so ordered.
PARKER, C. J., and BOTTS, J., concur.