Quartier v. Dowiat

• Decision Date: 20 December 1905
• Citation: 76 N.E. 371,219 Ill. 326
• Parties: QUARTIER v. DOWIAT.
• Court: Illinois Supreme Court

219 Ill. 326

76 N.E. 371

QUARTIER

v.DOWIAT.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Circuit Court, Vermilion County; James W. Craig, Judge.

Election contest by Peter Dowiat against Eugene Quartier. From a judgment in favor of contestant, contestee appeals. Affirmed.

Rehearing denied February 8, 1906.

Buckingham & Dysert and A. A. Partlow, for appellant.

Penwell & Lindley, for appellee.

BOGGS, J.

This was a proceeding instituted by the appellee in the circuit court of Vermilion county to contest the election of the appellant to the office of president of the board of trustees of the village of Westville. A petition was filed with the clerk of the said circuit court, which, after alleging many grounds why the appellant should be declared not duly elected and why the appellee should be declared elected, contained the following prayer: ‘Your petitioner further represents that on a count of the ballots cast by the electors your petitioner would have a clear majority, and he asks that such relief be granted as is provided by the statute in such cases made and provided, and for such other relief as equity, justice, and the good conscience of this court will grant.’ The petition concluded as follows: ‘Your petitioner further asks that upon a recount of said ballots, as provided by law, he be declared duly elected president of the village of Westville, and the declaration of the said judges that the said Eugene Quartier has been elected be annulled and canceled.’ A regular form of chancery summons was issued, which ordered the appellant ‘to answer unto Peter Dowiat in his certain bill of complaint, being a petition to contest election, filed in said court on the chancery side thereof,’ and was served as a chancery summons. The appellant appeared, and interposed a special demurrer, on the ground that the contest of an election was a statutory proceeding, and that a court of chancery had no jurisdiction to hear and determine an election contest. Thereupon appellee ‘moved the court to direct the clerk thereof to place the cause upon the common-law docket of this court at the present term thereof.’ The demurrer and the motion, called in the record a ‘cross-motion,’ were argued by the respective counsel together, and the court granted the motion as a cross-motion, but made no formal order as to the disposition of the demurrer, and the cause was thereupon placed upon the common-law docket. When the cause had been duly entered on the common-law docket, the appellant presented a plea in abatement, in which he recited all of the proceedings in the cause up to that time, and urged that the court had no jurisdiction of his person, for the reason that he had not been served with process, as required in common-law actions. A general demurrer was sustained to this plea, and, the appellant electing to stand by his plea, the court heard the cause on the merits, and entered judgment in accordance with the prayer of the petition. This is an appeal from such judgment.

Appellant urges that the court erred in not ruling upon and sustaining his demurrer to the petition. His contention is that the petition filed herein was a bill in chancery, that he had been served with chancery process, and that a court of chancery had no jurisdiction to hear and determine the cause, being the contest of an election. This contention is based upon that portion of the prayer of the petition ‘for such other relief as equity, justice, and the good conscience of this court will grant,’ and the fact that the indorsement on the petition read, ‘Bill in Chancery; Petition to Contest Election,’ and that the form of the summons was that of chancery process. This petition was addressed to the judge of the circuit court generally, not ‘in chancery sitting,’ and contained none of the earmarks of a bill in chancery,...