The opinion
GRAVES, J.
(concurring.) — I concur fully in paragraphs one, two and three of the opinion, and in tire *624 result. Paragraph three properly holds that there was no service of the notice. This ruling takes from the case all questions of waiver of service. Absent a valid service of notice, the court acquired no jurisdiction of the contest, 1. e. the subject-matter, and this cannot be waived. In contests provided for by Section 5924, Revised Statutes 1909,'a properly-served notice is a prerequisite to jurisdiction, both as to subject-matter and person. The cohtestee cannot waive jurisdiction over the subject-matter. The very wording of the statute withholds jurisdiction of the court over the contest, until this notice is properly given. It says “no election of any county officer shall he contested unless notice of such contest shall he given the opposite party within hventy days after the votes shall have heen officially counted” a clear condition precedent to a contest at all.
We have contested election proceedings wherein the circuit courts are given jurisdiction, which have not this prerequisite of jurisdiction required by Section 5924, supra. The contests involved under Section 5957 and 5965, Revised Statutes 1909, are examples. In these cases the contestant files his petition in court as in an ordinary action, and this act invokes the jurisdiction of the court over the subject-matter. These statutes provide for bringing in the contestee by summons, as in ordinary actions. So that in these cases the court acquires the jurisdiction of the subject-matter (the contest) by the filing of the petition. In such case the usual rule of waiver as to jurisdiction over the person applies.
This, however, has no application to these summary proceedings under Section 5924, supra, where as a prerequisite of any kind of jurisdiction there must be a properly served notice. Such has been the universal ruling of this court from Castello v. St. Louis Circuit Court, 28 Mo. 259 , up to and including State ex rel. v. Robinson, 270 Mo. 212 . The case of State ex rel. v. Cave, 272 Mo. 653 , is an innovation. However, our individual views are fully expressed in.State ex rel. v. Cave, 272 Mo. l. c. 663 et seq., and in State ex rel. v. *625 Robinson, snpra, and we can add but little to what is there said.
So, whilst I think my learned brother has written well on the question of waiver, I do not think it is in this ease at all. For these reasons, I concur as above stated.
Walker, J., concurs in these views.