Opinion, per JOHNSON, J. the right to take depositions at any time after service on the defendant. It is easy to conceive of cases in which great injustice would ultimately result if parties were compelled to wait until the final issue of error proceedings, which might consume long periods of time, and take the chances of success in such proceedings without the right to take the depositions of sick or absent witnesses whose testimony might be essential to the establishment of their case. And the delay necessarily incident to a special proceeding in court to perpetuate testimony might be equally hurtful. Moreover, in this instance, the defendant's counsel, after the service of notice on them, attended the taking of the deposition, cross-examined the witness at length, and made no objection to the right of the plaintiff to take the deposition and file it in the common pleas court, until after the cause had been remanded to that court. This appearance and this participation in the taking of the deposition and the examination of the witness without objection amounted to a waiver in any view of the case. It is not analogous to a waiver of objection to the jurisdiction of a court over a subject-matter beyond that conferred by law. Some other alleged errors in the record are urged upon our attention and we have given them careful consideration. They were also urged in the court of appeals, and we agree with that court that none of them constitutes such error as would justify a reversal of the judgment of the court of common pleas. Some of the objections relate to Opinion, per JOHNSON, J. refusal to give special charges, the substance of some of which was included in the general charge and of others in other special charges. There were some thirty-five of these special charges requested. We think we might appropriately call attention to the admonitions of the court, speaking by Spear, J., in American Steel Packing Co. v. Conkle, 86 Ohio St., 117, touching excessive and repetitious requests to charge. The judgment of the trial court here involved was entered after five trials of the case to juries. This fact furnishes no ground to deny the right of review. But in such a case the reviewing court should be careful to see that the error complained of is real and substantial and that by reason of it justice has not been done. The mischief of endless litigation is itself a thing to be dreaded. The judgment of the court of appeals will be reversed and that of the common pleas affirmed. Judgment reversed. MATTHIAS, WANAMAKER, ROBINSON and MER RELL, JJ., concur. JONES, J., dissents from third proposition of the syllabus. Statement of the Case. THE STATE, EX REL. KEYSER, V. BABST. - Office and officer - Title by certificate of election — Possession during contest proceedings - Election and term of mayor-` Section 4255, General Code - Pleading - Mayor defeated for re-election-Quo warranto or mandamus. 1. A valid certificate of election, issued to a candidate after canvass of the returns by legally constituted authorities, gives such candidate a colorable and prima facie title to the office. 2. Where proceedings to contest such office have been instituted, such certificate entitles the candidate receiving it to the possession of the office until the de jure title thereto has been finally determined in such contest proceedings. 3. An incumbent mayor, claiming the right of possession until his successor has been elected and qualified (Section 4255, General Code), has neither title nor right to possession which justifies him in withholding possession from the candidate holding such certificate. 4. An answer by an incumbent official, who was also a candidate for re-election, that he has filed contest proceedings against an opponent holding such certificate, does not present a defense in an action brought by the latter for possession of the office. (No. 16487-Decided May 11, 1920.) IN QUO WARRANTO. In November, 1917, Babst was elected mayor of Crestline, and assumed the duties of that office on January 1, 1918. He is now exercising the functions of the office. At the November election in 1919 Keyser and Babst were opposing candidates for the office of mayor. Upon the face of the returns of that election it appears that Keyser received six more votes than Babst, and after the canvass was made a certificate of election to the office of mayor was issued to Keyser by the deputy state supervisors of elections of Crawford county. Statement of the Case. In due time the relator gave the necessary bond and took the oath of office, and on the first day of January, 1920, demanded possession, together with all records, which the defendant refused to surrender. Alleging the foregoing facts the relator instituted an original action in this court in which he prayed for the ouster of the defendant and the induction of himself. The defendant answers that following the election of November 4, 1919, he began proceedings in the probate court of Crawford county to contest said election, which proceedings are still pending. Both parties also instituted separate injunction proceedings in the court of common pleas of Crawford county, wherein Keyser attacked the jurisdiction of the probate court in the contest proceedings and sought to prevent further hearing, and Babst sought to restrain the relator from interfering with his possession until the title to the office should be determined in the election contest proceeding. The election contest still remains undisposed of, while the injunction suit of Babst against Keyser, wherein a temporary injunction was issued in favor of Babst, is now pending in the court of appeals of Crawford county. Keyser's separate suit for injunction is still pending in the common pleas court without determination. The pleadings filed in the suit instituted here are very voluminous. However, the foregoing facts, gleaned from the pleadings, and from the agreed statement of facts on file, are sufficient for the determination of the questions presented. Opinion, per JONES, J. Mr. Benjamin Meck; Mr. William C. Beer and Mr. W. J. Geer, for plaintiff. Mr. W. J. Schwenck and Mr. Charles F. Schaber, for defendant. JONES, J. In the view we take of this case the question presented is a simple one, but it has been confused by the various and separate actions taken by both parties in the several proceedings referred to. Babst, the incumbent mayor, by reason of his election in November, 1917, claims the office as a holdover official, at least until the determination of the contest proceedings, by virtue of Section 4255, General Code, which authorizes him to serve until his successor is elected and qualified. It is not denied, however, that at the election in November, 1919, where Keyser and Babst were opposing candidates for the office, upon the canvass of the returns Keyser was declared elected and given a certificate of election. In the petition filed herein. the relator alleged that he received his certificate from the deputy state supervisors of elections of Crawford county. Upon the hearing in this court counsel for the defendant insisted that a valid certificate could only be made by the clerk of the municipality, under favor of Sections 5111 and 5114, General Code, whereupon the relator was given leave to amend his petition, showing the issuance of such certificate by the clerk. This certificate has since been filed. It therefore appears from the conceded facts that although the defendant is the holdover mayor of |