Jackson v. Winans

• Decision Date: 09 April 1919
• Docket Number: No. 12500.,12500.
• Citation: 287 Ill. 382,122 N.E. 611
• Parties: JACKSON v. WINANS.
• Court: Illinois Supreme Court

287 Ill. 382

122 N.E. 611

JACKSON

v.WINANS.

No. 12500.

Supreme Court of Illinois.

Feb. 20, 1919.

Rehearing Denied April 9, 1919.

Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge.

Election contest by Frank H. Jackson against Jason W. Winans. From decree for contestant, contestee appealed to the Appellate Court; the appeal being transferred to the Supreme Court on his motion. Decree affirmed.Browne & Wiley and George S. Wiley, all of Ottawa, for appellant.

Thomas Kennedy, of Bloomington, and Butters & Clark, of Ottawa, for appellee.

CARTER, J.

This was an election contest filed by appellee in the circuit court of La Salle county, contesting the election of appellant as president of the board of trustees of the village of Rutland, in said county. After the pleadings were settled, the matter was heard before the judge, and a decree was entered in favor of appellee. From that decree appellant was allowed an appeal to this court, but before perfecting such appeal he made a motion to set aside the order and to have the appeal changed to the Appellate Court for the Second District. The appeal allowed on this last motion was perfected to the Appellate Court, and on appellant's motion in that court the cause was transferred to this court.

The record shows that on April 17, 1917, a regular village election was held for village officers of said village. Appellee, Jackson, was the only person nominated for the office of president, and the only person whose name was printed on the ballots for that office when the official ballots were given to the judges of election by the village clerk. When the votes were counted by the judges of election it was discovered that many voters had voted for appellant, Winans, by attaching a sticker on their ballots in a small space left under Jackson's name and before the names of the candidates for trustees; the name of Winans being written with pen and ink on the sticker. The evidence shows that there was nothing in the nature of stickers on the ballots when the village clerk turned them over to the judges of election, and that the clerk did not deliver to the judges any stickers along with the ballots. The judges of election counted the ballots with the stickers thus pasted on for Winans. The evidence shows that the judges made no public proclamation of the result of the election as to the president of the board or any other officers voted for at the election, and that on their written returns they did not write out in words the total number of votes received by each candidate, or make any final total aggregating the number of men's and women's votes received by each candidate; that the votes cast by the men and women at this election were placed in separate ballot boxes, and that returns were made separately as to the men's and the women's votes; and that the total vote as to the various candidates was aggregated and added up by the trustees of the village board from the pollbooks, certificates, and tally sheets in canvassing the returns. The total vote as thus aggregated by the village board showed that for president of the board of trustees appellant had received 48 votes from the men and women and that appellee had received 37 votes. Appellant was declared elected and given the certificate as president of the board for the coming term.

The petition of contest was filed by appellee in the circuit court May 16, 1917. Appellant entered his general appearance by his attorney and filed an answer, to which a replication was filed by appellee. When the case was called for trial in June, 1918, appellant asked and obtained leave to withdraw his answer. After it was withdrawn, he moved to quash the petition and strike it from the files. Neither the motion nor the grounds for it appear in the abstract. The motion was denied. Appellant did not abide by his motion, but on June 15, 1918, asked and obtained leave to have the answer filed and theretofore withdrawn stand as the answer to the petition. When the hearing came on before the trial judge, appellee made preliminary proof as to the preservation of the ballots since the election. After this evidence was heard the court admitted the ballots in evidence and they were counted. On 35 ballots there were found stickers with the appellant's name written thereon, and these were not counted by the court. The trial court found that appellant had received only 13 legal votes and that appellee had received 36 legal votes and was duly and legally elected.

The first question to be disposed of is that raised by counsel for appellee to the effect that this case is not one of those which under section 102 of the Practice Act could properly be transferred from the Appellate Court to this court; the argument being that under section 123 of the Election Act the appeal from the trial court must necessarily be taken in election contests to the Supreme Court (Hurd's Stat. 1917, p. 1265), and that when an appellant has deliberately changed his appeal from the right to the wrong court this court should construe section 102 of the Practice Act (Hurd's Rev. St. 1917, c. 110) as not including such a case in the cases taken to the wrong court, as referred to by said section. We cannot agree with the reasoning of counsel for appellee in this regard. While it is obvious that under section 123 of the Election Act the appeal could only properly be taken to this court from the decree of the circuit court, we think section 102 of the Practice Act in its wording was intended to cover every case, whether taken intentionally or by mistake to the wrong court.

There is merit in the argument of counsel for appellee that appellant is in no position to raise the question now as to the legal sufficiency of the petition herein as he has not presented in the abstract the motion, or the reasons upon which his motion was based, to dismiss the petition; that this court has held that a party bringing a case to a court of review must furnish such a complete abstract of record as will fully present every error and exception relied upon, sufficient for the examination and determination of the case, without the examination of the record itself (Gibler v. City of Mattoon, 167 Ill. 18, 47 N. E. 319); that the court will not explore the record itself to find errors to sustain the assignment of error (People v. Yuskauskas, 268 Ill. 328, 109 N. E. 319). But, conceding that this defect in the abstract is not sufficient to justify this court in sustaining the overrulingof the motion to dismiss the petition, we will consider, for the purposes of this case, the reasons urged in the briefs of appellant for the allowing of that motion.

Counsel argue that the petition should have been dismissed because it did not set out clearly the points upon which the election was contested, as required by section 113 of the Election Act as construed by this court in Daugherty v. Carnine, 261 Ill. 366, 103 N. E. 1003. It must be conceded that the petition is quite general in its wording; but we think it is clear that it charges that illegal ballots were cast that it charges appellant by means of pasting his name upon the ballots by the use of stickers. It is manifest from the wording of the answer that the appellant understood the charge as to the use of stickers rendering the election by ballot invalid. Furthermore, appellant, instead of standing by his motion to dismiss, answered, making issues of the facts, and evidence was received upon the alleged general and indefinite allegations of the petition, and he thereby waived the objection as to the points being indefinite. Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N. E. 232,8 Am. St. Rep. 349;Arnold v. Keil, 252 Ill. 340, 96 N. E. 869. See, also, McGovern v. City of Chicago, 281 Ill. 264, 118 N. E. 3.

Counsel for appellant also argue that the petition was insufficient, because it was sworn to on information and belief, and that under the reasoning of this court in Daugherty v. Carnine, supra, it should have been dismissed on that ground alone. In that case the petition was not sworn to in any manner by the contestant. The point here relied on was passed on in the later case of Farrell v. Heiberg, 262 Ill. 407, 104 N. E. 835, where Daugherty v. Carnine was referred to, and it was held in the later decision that an affidavit to a petition based on information and belief was sufficient; that generally in election contests all the contestant can swear to truthfully is that he is informed and believes that certain facts are true; that he must rely largely on information obtained from others; that, giving the election statute a reasonable construction in order to accomplish the purpose intended, it would be impracticable to compel the petition to be sworn to on the personal knowledge of the contestant. On the reasoning in that case and in Kreitz v. Behrensmeyer, supra, it must be held that the petition sworn to on information and belief was not invalid, as contended by appellant.

Counsel for appellant also rely strongly upon the...