188 N.W.2d 637 (Mich.App. 1971), 10120, Petrie v. Curtis

Docket Nº:Docket No. 10120.
Citation:188 N.W.2d 637, 32 Mich.App. 151
Opinion Judge:Before FITZGERALDand HOLBROOK and BRONSON, JJ
Party Name:Bryce PETRIE, Plaintiff-Appellee, v. Robert CURTIS, Defendant-Appellant.
Attorney:James R. [32 Mich.App. 152] Zerafa, Elk Rapids, for defendant-appellant. Glenn Aylsworth, Traverse City, for plaintiff-appellee.
Judge Panel:Before FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.
Case Date:March 29, 1971
Court:Court of Appeals of Michigan
 
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188 N.W.2d 637 (Mich.App. 1971)

32 Mich.App. 151

Bryce PETRIE, Plaintiff-Appellee,

v.

Robert CURTIS, Defendant-Appellant.

Docket No. 10120.

Court of Appeals of Michigan, Division No. 3.

March 29, 1971

Released for Publication July 7, 1971.

James R. [32 Mich.App. 152] Zerafa, Elk Rapids, for defendant-appellant.

Glenn Aylsworth, Traverse City, for plaintiff-appellee.

Before FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.

BRONSON, Judge.

Plaintiff, Bryce Petrie, after being granted leave to file a Quo warranto proceeding in Antrim County Circuit Court, filed a motion for summary judgment. The motion sought to have defendant, Robert Curtis, ousted from the office of Sheriff of Antrim County and have plaintiff declared the person legally entitled to the office. The court granted plaintiff's motion for a summary judgment. Defendant appeals as of right to this Court from the trial court's order.

The uncontroverted facts, as set forth in plaintiff's affidavit with his motion for a summary judgment, can be briefly stated. Plaintiff, as a write-in candidate, opposed defendant in the general election held November 5, 1968, for the office of Sheriff of Antrim County. Although a recount indicated that plaintiff lost the election by a total [32 Mich.App. 153] of 98 votes, the County Board of Canvassers refused to count an additional 140 votes as representing valid write-in votes for plaintiff because plaintiff's name was not properly designated. Specifically, 132 of the disqualified votes simply designated a vote for 'Petrie'; two votes designated 'Bryan Petrie'; three votes, 'Petry'; one vote, 'Petrie, B.'; one vote, 'B. L. Petrie'; and a final vote for 'Pettries'.

Plaintiff further stated in his affidavit that 'Petrie' is not a common name in the county and that no other male person named 'Petrie' was a candidate for public office in the election; that plaintiff was juvenile officer of the county probate court and well known to the voters; that plaintiff's write-in campaign was widely publicized locally; and that plaintiff believed that all 140 uncounted votes referred to were intended for him.

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The circuit court ruled that the 132 votes designated 'Petrie' logically could refer only to plaintiff and pursuant to GCR 1963, 117.2(3) granted plaintiff's motion for a summary judgment. The court's order provided for the ouster of...

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