Greene v. Bjorseth
| Decision Date | 22 December 1932 |
| Docket Number | No. 21392.,21392. |
| Citation | 350 Ill. 469,183 N.E. 464 |
| Parties | GREENE v. BJORSETH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Election contest by Charles H. Greene against Conrad M. Bjorseth. Judgment declaring the latter elected, and the contestant appeals, with assignment of cross-errors by contestee.
Affirmed.Appeal from Kane County Court; Olney C. Allen, Judge.
Maurice F. Lord and Alschuler, Putnam, Flannigan & Johnson, all of Aurora, for appellant.
Frank R. Reid, Charles A. O'Connor, and John G. Plain, all of Aurora, for appellee.
Charles H. Greene and Conrad M. Bjorseth were candidates on April 21, 1931, for the office of mayor of the city of Aurora, which had adopted the commission form of government. The city council canvassed the vote on April 22, found that Bjorseth received 9,556 votes and Greene 9,543, and declared Bjorseth elected. He qualified and assumed the duties of the office. On May 21 Greene filed a petition in the county court of Kane county to contest the election. A demurrer was sustained to the petition and it was amended. A motion to dismiss the amended petition was overruled, as was a demurrer subsequently filed. Bjorseth answered, the cause was heard, the court found that Bjorseth had received 9,359 votes and Greene 9,355, and declared the former elected. Greene appealed, and the appellee has assigned cross-errors.
A preliminary question arises on the cross-errors. The appellee contends that the court erred in allowing the petitioner to amend the petition more than thirty days after the result of the election had been declared, by inserting the allegation that he was a resident of the Third ward of the city of Aurora. The allegation of the original petition was that he was ‘a resident and legally qualified elector and voter of the city of Aurora.’ This is all the statute requires. The appellee contends that the allegation is a mere legal conclusion of the pleader. The allegation that the petitioner is an elector is an allegation of the fact, which is itself dependent upon citizenship, residence, and freedom from conviction of a felony; but the fact in regard to all these things need not be alleged to make it appear in a pleading that he is an elector. The question of citizenship is also dependent on place of birth of a person or his ancestor or the naturalization of the one or the other, but it is not necessary to allege these facts in alleging citizenship. Residence is also a somewhat complicated question, but it is sufficient for a complainant in a bill for divorce to allege that he is a resident of the county in which his bill is filed. The appellee cites Donovan v. Comerford, 332 Ill. 230, 163 N. E. 657, in support of his contention, but that case did not hold that the allegation that the petitioner was an elector was a legal conclusion or that it was necessary for a petitioner in an election contest to allege that he had resided in a certain election district thirty days or any other length of time. The petition in that case did not state that the petitioner was an elector, but only that he was a citizen and resident of Cook county, and the court held that citizenship and residence did not, alone, make one an elector. In holding that particular petition insufficient the opinion said that it was fatally defective because it contained no allegation that the petitioner had been a resident of any election district for thirty days next preceding the election. If it had contained that allegation it would have shown the petitioner to be an elector, but failing to do so, the petition, not showing otherwise that he was an elector, was fatally defective. The other case cited on this point by the appellee, Kitt v. Holbert, 30 Ariz. 397, 248 P. 25, is of the same kind.
[3] Another objection made to the petition is that it was wholly on information and belief. No objection is made to its verification, which is the usual form of verification of bills in chancery. The allegations of the petition, of which the petitioner could be expected to have personal knowledge by his own observation, were stated positively in the bill as facts, without qualification. The bill also contained allegations of many facts of which, by their nature or the circumstances, the petitioner could not have personal knowledge-facts occurring in his absence, which he could not know except by information derived from others. These allegations are made not less positively but are qualified by the statement that they are made on information and belief in substantially the form, ‘on information and belief the petitioner states,’ proceeding with allegations of the facts charged. The charges are no less direct and positive than those which are not preceded by the qualifying statement that they are made on information and belief. The statements so made are really averments of the facts, together with a statement of the source from which they are derived. Coryell v. Klehm, 157 Ill. 462, 41 N. E. 864.
The motion to dismiss the amended petition, and the demurrer to it, were properly overruled.
[4] On the day this petition was filed in the county court Frank Thelen filed in the circuit court a petition to contest the election of Frank Biever to the office of city commissioner in the same election. The ballots and papers used in the election were ordered by the court to be impounded and were put in possession of the circuit clerk. The circuit court made an order in that cause that the county court and the parties interested in this case in the county court be given the opportunity to observe, inspect, and examine the ballots, poll lists, tally sheets, list of absent voters, and all other papers and documents pertaining to the election. The trial of the case in the circuit court was held in the supervisors' room in the courthouse, and the county court met in that room while the circuit court was in session there and had before it the ballots and papers used in the election. The appellee objected to any session of the county court in the room occupied by the circuit court, and his objection was overruled. The appellee then objected to the county court listening to the testimony of the circuit clerk given in the trial of the case in the circuit court in regard to ballots, tally sheets, and other things material to the issue pending in the county court. The court sustained the objection, saying, ‘The court will automatically disregard everything that was heard.’ The appellee urges that the county court erred in holding court in the room where the circuit court was in session and anywhere but in the county court room, on the ground that confusion necessarily arose out of the circumstances and that there was no warrant of law for the action of the court. Later, after the trial had proceeded for a time, counsel for the appellee entered an objection that he could not follow the testimony because of the conduct of the contest in the case which was in progress in the circuit court and the confusion arising from the counting of the ballots in that case. The court, recognizing the justice of the objection, ordered an adjournment instanter to an anteroom of the supervisors' room for the further hearing of the case and the trial was continued in the anteroom. No prejudice is pointed out from the action of the court either in proceeding with the trial of the case in the same room with the circuit court or in removing from that room to an anteroom and continuing the trial there. There is no rule of law requiring either the circuit court or the county court to hold its sessions in any particular room in the county courthouse and they may be held in any suitable room provided for that purpose in the courthouse. The situation was an unusual one, to be met in a practical way. In ordinary cases it would be confusing for two courts to be in session in the same room at the same time, but these two courts, dealing with the same subject-matter and necessarily using the same ballots, poll lists, tally sheets, and other papers and documents, might very well without confusion perform their similar duties at the same time and place or in succession. The circuit clerk had the custody of the ballots and papers, which were in five mail sacks, sealed, and in the vault of the circuit clerk. The method of proceeding was that the circuit clerk brought a mail sack into the presence of the circuit court, opened it upon the order of the court, and after the court and the lawyers, and others who were interested in the case on trial, had used the contents as evidence, they were brought to the county court, sitting first in the room in which the circuit court was also sitting and after a time in an adjoining room, and there the circuit clerk testified in the case there pending,identifying the papers and sacks which he brought into the room as the same which he had exhibited in the circuit court on the trial in the circuit court. On the trial in the circuit court the ballots had been handled by from six to a dozen people. We cannot say that prejudice would necessarily or probably result, and no prejudice is shown. The course pursued in regard to the trial is not shown to have had any prejudicial effect and is not a ground for the reversal of the judgment reached.
The appellee contends that the court erred in allowing the ballots to overcome the returns, because the appellant did not show that the ballots had been properly preserved. The appellee presents ten objections to the reception of the ballots and to their probative force. The first is that the ballots and returns were deposited on the floor of the vault in the clerk's office. It is shown by the evidence that they were so deposited in their original packages and on the evening of the election, after their delivery to the city clerk. This did not show that they were not properly preserved. The evidence further shows that the vault was locked when the city clerk left...
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