On Petition for Rehearing.
Fisk, J.In a petition for a rehearing, counsel for appellant present merely a rehash of their former argument in an effort to convince us that the question of the validity of the election in the omitted precincts was not, and could not be, litigated in the mandamus proceeding. They seem to labor under the erroneous impression that such question was not and could not be litigated therein, first, because the court had no jurisdiction so to do; and, second, because they strenuously objected to the trial of such issue, and offered no testimony to rebut that of defendants after their objection was overruled. The fallacy of such contention is too clear to merit serious consideration. The district court clearly had jurisdiction over the subject-matter embraced in such issue, and, this being true, its decision adjudicating such issue is final until reversed on appeal, even conceding for the purposes of this case that it committed gross error in overruling relator’s objection to,the trial thereof in that proceeding. And, manifestly, relator’s objection *434to such trial, and his refusal or failure to introduce testimony on such issue, would not operate to oust the court of jurisdiction.
In order that our first opinion may not be misunderstood, we will briefly restate our views in another form.
The court in State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834, was called upon to decide whether the canvassing board which had, on account of the alleged existence of certain facts, refused to canvass the returns from certain precincts, should be compelled by mandamus to reconvene and perform such official duty. The board asserted in its return or answer that it ought not to be compelled to do so because the election in such precincts was not held at the proper voting places, and consequently was void. The sufficiency of such answer as a defense was challenged by an objection thereto, which was overruled. Whether such ruling was right or wrong, the court clearly had jurisdiction to make it. Testimony relating to such issue was thereupon introduced, over relator’s objection, it is true; and after the evidence was submitted, and after an adjournment from December 16th to February 8th, relators interposed a demurrer attempting again to challenge the legal sufficiency of the facts set out in ,¶ 4 of respondent’s answer or return, to constitute a defense. This amounted merely to an invitation to the court to again rule on the identical question which it had previously ruled on, and appellant now complains because a second ruling was not made. The court apparently ignored such alleged demurrer, as it had a right to do. It was too late. The time for pleading or demurring had passed. The testimony had been submitted, and no leave had been granted to file such demurrer. No testimony was offered by relator to contradict that of defendants on such issue, and the court thereafter rendered its decision denying the writ upon the ground that the election in such precincts was void, basing it upon the facts thus disclosed. This decision was, on appeal to this court, in all things affirmed.
Counsel for appellant in the case at bar now strenuously assert in their petition for a rehearing just what they contended for on the argument, that the question of the validity of the election in the omitted precincts was not, and could not be, litigated and adjudicated in such prior proceeding. We attempted to answer such contention in our prior opinion filed herein, by stating in substance that, whether right *435ox wrong, tbe district court squarely held that it was proper to litigate and adjudicate such question, and this court on appeal in all things affirmed its judgment The question, therefore, as to whether such facts properly constituted a defense in the mandamus case is, we think, forever foreclosed as between these parties and those in privity with them. If this position is unsound, there is no end to litigation, and the rule of res judicata, might as well be abolished.
Appellant’s argument proceeds upon the erroneous theory that the court had no jurisdiction in the mandamus case to try such issue, but manifestly jurisdiction existed, and, at the most, it was error to do so, and the ruling constituting such error, if error it was, unless corrected on appeal, must stand. “The errors of a court,” says Mr. Herman, “do not impair the validity of their judgment. Binding until reversed, any objection to their full effect must go to the authority under which they have been conducted.” Herman, Estoppel & Bes Judicata, § 367, p. 425.
Counsel assert with apparent confidence in the correctness of their assertion that we have in effect overruled. State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231, and Chandler v. Starling, 19 N. D. 144, 121 N. W. 198, in our opinion as written, and that we ought to expressly say so if that is the intention. If the premise is correct we admit the correctness of the conclusion. ' The premise is, however, not well founded. These cases differ from that in the case at bar in important particulars. The question which counsel raises in the case at bar was raised in each of such cases on appeals in the mandamus cases, and the court in those cases was called upon merely to review the rulings as errors of law. What it said in each case must be construed, therefore, in the light of the fact that it was sitting in review of the rulings complained of, and all it really decided was that error was not committed in the Butler and Chandler Oases, and was committed in the Sunderall Case. In other words, it did not assume to hold -that the lower courts had no jurisdiction to adjudicate the issue sought to be injected into the case; but we are asked to thus hold in the case at bar, which is a separate and distinct action from the mandamus case, and this in the face of our decision in the mandamus proceeding holding that the trial court acted correctly in receiving testimony and in *436deciding such issue. The Butler and Chandler Cases also differ from State ex rel. Johnson v. Ely, in the fact that in those cases the relators each had a certificate of election or appointment which clothed them with a prima facie title and right to the office, while in State ex rel. Johnson v. Ely, the relator had no such prima facie right or title. The proceeding was brought, therefore, not to enforce a prima facie right or title, but to coerce the canvassing board to canvass the votes from certain omitted precincts, whether legal or not. If such votes were illegal as a matter of law, it seems strange that such fact could not be shown as a complete defense in the mandamus case. In other words, it does not seem to us to be a sound proposition of law that the relator was entitled to a writ compelling the board, in effect, to clothe him with a prima facie right by canvassing such votes and issuing a certificate of election, without an inquiry by the court into the question, when brought to its notice, of the validity of the election. Even in the Butler Case where, as we have seen, relator possessed a certificate of election conferring on him a prima facie title to the office, it was held, nevertheless, that if facts showing the election to be void existed, such as the court would take judicial notice of, the relator’s case must fall, as the prima facie effect of the certificate would be defeated thereby.
Petition denied.
Goss, J. not participating.