¶1 I concur in the opinion of Mr. Justice MOF-FAT as to all the ballots except as to K and N. As to those, I concur in what is said relative thereto by Mr. Chief Justice WOLFE.
¶2 However, I dissent from the order made, for the reason suggested by the CHIEF JUSTICE. For more than twenty years this court has consistently held in every case involving the question which has come before it, that cross-assignments of error without a cross-appeal are not available to a respondent for the purpose of modifying a judgment below. Fowers v. Lawson, 56 Utah 420, 191 P. 227; Commercial Block Realty Co. v. Merchant’s Protective Ass’n, 71 Utah 505, 267 P. 1009; Buttrey v. Guaranty Securities Co., 78 Utah 39, 300 P. 1040; Hartford Accident & Indemnity Co. v. Clegg, 103 Utah 414, 135 P. 2d 919, decided in April of this year.
¶3 An intimation to the contrary contained in the opinion of the court in San Pedro, L. A. & S. L. R. Co. v. Board of Education, 35 Utah 13, 99 P. 263, was erased by the writer of the opinion in the subsequent case of Fowers v. Lawson, supra.
¶4 As I read the foregoing cases the problem involved is not that of getting rid of some archaic court rule; it is a problem of construing the statutory provisions relative to appeals to this court. In Buttrey v. Guaranty Securities Co., supra, a motion to dismiss respondent’s cross-appeal on the ground that it had failed 'to comply with the statutes relative to undertakings on appeal was before this court for *428 argument. The cross-appeal was dismissed on such ground, the opinion stating (78 Utah at page 45, 300 P. at page 1043):
“It is claimed, however, on behalf of the receiver [respondent] that no undertaking’ is required of him because his is a cross-appeal, and the statutes do not apply to such appeals. But the statutes make no exceptions in favor of cross-appeals; by the plain import of their terms they apply to all appeals.”
¶5 But were it a question of amending the rules, that should be done in the manner prescribed for so doing, and not by pronouncing such amendment in a cause before the court— and then but by implication.
¶6 With the statement made in the opinion of Mr. Justice LARSON that
“the rule as to cross assignments merely upholding the judgment does does not apply to election contests,”
¶7 I am not in accord. The sections of the statutes referred to in support thereof apply to the election contest in the court where such contest is heard and determined. — the district court. What the statutes say relative to appeal from a judgment in such contest is contained in Sec. 25-14-14, reading as follows:
“Either party aggrieved by the judgment may appeal therefrom to the supreme court as in other cases of appeal from the district court, but such appeal must not stay execution or proceedings, except execution for costs.”
¶8 The judgment below should be affirmed with costs to respondents.