Kingery v. Joshua Berry.

• Decision Date: 31 January 1880
• Citation: 94 Ill. 515,1880 WL 9980
• Parties: DANIEL KINGERYv.JOSHUA BERRY.
• Court: Illinois Supreme Court

94 Ill. 515

1880 WL 9980 (Ill.)

DANIEL KINGERY

v.JOSHUA BERRY.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cumberland county

Mr. N. L. SCRANTON, for the appellant:

The law is, that this class of cases shall be governed by the rules of chancery practice, and the defendant had a right to have his evidence taken in writing by deposition or otherwise, and was entitled to time to take the same. Dale v. Erwin, 78 Ill. 171.

The court erred in receiving in evidence the ballots after they had been tampered with in the absence of Kingery, and in refusing a change of venue.

The order or finding of the court in this case, from the facts shown by the record, is erroneous. McCrary Am. Law of Elections, side pages 277, 279, 280; Gooding v. Wilson, 42 Congress; Butler v. Lehman, 1 Bart. 354; Kline v. Verree, Id. 381; Archer v. Allen, Id. 169; Kansas case, 2 Parsons, 599; Thompson v. Ewing, 1 Brewst. 67-97.

Messrs. BREWER & SON, and Messrs. GREEN & WOODS, for appellee:

The court did not err in not granting appellant's motion to take the evidence in writing, for the appellant gave no notice that he desired to take it in writing, nor did he make his application for the same until the cause was set down for hearing and the trial had commenced.

Mr. E. CALLAHAN, also for the appellee:

There is no evidence preserved in the record from which the court can determine whether the court below did or did not err in its judgment against appellant. The paper copied as a bill of exceptions is not certified by the judge to contain evidence in this case. The judge makes no certificate in regard to it whatever. Unless a bill of exceptions states that it contains all the evidence in the case, the presumption is that there was sufficient evidence to sustain the finding of the court below. Trustees v. Lefler, 23 Ill. 90; Ottawa Gas Light and Coke Co. v. Graham, 35 Id. 346; Peoria, etc. R. R. Co. v. McIntyre, 39 Id. 298; Illinois Central Railroad Co. v. Garish, 39 Id. 370; Board of Trustees, etc. v. Meisenheimer, 89 Id. 370.

Then again, the paper purporting to be a bill of exceptions was never sealed by the judge of the court below. Under our statute it is the duty of the judge to allow exceptions, and sign and seal the same, and the exceptions thereupon become a part of the record of the case. Rev. Stat. 1874, page 782, sec. 60.

When there is no seal to a bill of exceptions, this court will not look into it to see if there is error. Miller v. Jenkins, 44 Ill. 443.

There being no bill of exceptions in this record, the appellant's motion for a change of venue and his excepting to the refusal to grant the same, are out of the case. Phillips v. The People, 88 Ill. 160.

The jurisdiction of the county court to try a contested election, at any term, is unquestionable. It is the “county court” that is vested with “jurisdiction in all matters of probate,” etc., (Constitution, article 6, sec. 18,) and it is the county court that “shall hear and determine contests of election of all other county, township and precinct officers,” etc. Rev. Stat. 1874, page 464, sec. 98.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a proceeding by petition under the statute, brought by Joshua Berry, in the county court of Cumberland county, to contest the alleged election of Daniel Kingery to the office of commissioner of highways in the town of Woodbury, in said county, at the annual April election, A. D. 1879.

The canvass of the votes, as made by the judges and clerks of election, upon the closing of the polls gave Kingery 70 and Berry 68 votes, electing Kingery by two majority.

The county court, upon the hearing, found that the petitioner, Berry, received at the election 71 votes, and the defendant, Kingery, 66 votes, and adjudged accordingly that Berry was elected. Kingery appeals to this court.

As the bill of exceptions does not purport to contain all the evidence in the case, it is objected by appellee that there should be no review by this court of the finding of the court below upon the facts, but that it should be held correct, the presumption being that there was sufficient evidence to sustain the finding, as has been repeatedly ruled by this court.

We are of opinion that this proceeding, under the statute regulating it, is in the nature of a chancery proceeding, and that the rule in chancery practice should be applied here, that to uphold the decree it must appear from the record that it is supported by the proofs.

It appears in evidence that some twenty days after the election, the town clerk, in whose keeping the ballot-box was entrusted, with eleven other persons, one of whom was this petitioner, acting with him, opened the ballot-box and handled the ballots,--that they took the ballots out of the ballot-box, unstrung them from the thread they were on, upon a table in a pile, then put them back in the box and counted them out and strung them again. This was done wrongfully, without any authority whatever. Appellant, Kingery, was not present, nor any of the judges or clerks of the election, neither did either of them have any notice of the proceeding.

The statute in regard to the preservation of the ballots at an election is...