Talkington v. Turner

• Decision Date: 31 January 1874
• Citation: Talkington v. Turner, 71 Ill. 234, 1874 WL 8648 (Ill. 1874)
• Parties: JOSEPH TALKINGTONv.ANDREW J. TURNER.
• Court: Illinois Supreme Court

71 Ill. 234

1874 WL 8648 (Ill.)

JOSEPH TALKINGTON

v.ANDREW J. TURNER.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Morgan county; the Hon. EDWARD P. KIRBY, Judge, presiding.

Messrs. EPLER, CALLON & DELEUW, for the appellant.

Mr. WM. H. BARNES, and Mr. GEO. W. SMITH, for the appellee.

Mr. JUSTICE SCHOLFIELDdelivered the opinion of the Court:

This was a proceeding to contest an election for the office of constable in Waverly precinct, in Morgan county, commenced by petition filed in the county court of that county.

We are inclined to hold that the several objections urged against the petition, in the court below, were properly overruled, and that the court did not err in rejecting the evidence offered by the appellant.

By section 98 of the act in regard to elections, etc., in force July 1st, 1872, the county court is empowered to hear and determine contests of this kind; and, by section 112, any elector of the township or precinct is authorized to make the contest.

Sections 113,114,115and116 of the act are as follows:

“Sec. 113.The person desiring to contest such election shall, within 30 days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement, in writing, setting forth the points on which he will contest the election, which statement shall be verified by affidavit in the same manner as bills in chancery may be verified.

Sec. 114.Upon the filing of such statement, summons shall issue against the person whose office is contested, and he may be served with process or notified to appear, in the same manner as is provided in cases in chancery.

Sec. 115.Evidence may be taken in the same manner and upon like notice as in cases in chancery."Sec. 116.The case shall be tried in like manner as cases in chancery.”

The purpose would seem to be to place the contest on the same footing as a case in chancery, and, in this view, the contestant may, clearly, place his contest upon any ground he chooses, and the opposite party may interpose, by answer, any matters which show that the contestant is not equitably entitled to the relief he seeks.

A mistake may exist in the count of the ballots, when all other steps in the election have been regular and accurate, and in such a case it would be strange, indeed, if the contestant might not contest for this cause alone.

The objection urged, that the cause of the mistake is not alleged as proved, is immaterial.The question is, was there a mistake in counting the votes, and if so, to what extent?The cause of the mistake is unimportant.

This case must, however, be reversed on the facts as found by the court below.

The record shows that, after examining and counting the ballots, the court found the facts to be as follows:

“Under the printed heading ‘For Constable,’ there were cast: 163 ballots ‘A. J. Turner,’ 7 ballots ‘A. Turner,’1 ballot ‘A. J. Turn,’ 1 ballot ‘J. A. Turner,’ 1 ballot ‘A. Turney,’4 ballots ‘Andrew Turner,’ 5 ballots ‘Andy Turner.’All of which said ballots were counted and found to amount to 184, and allowed by the court as cast for the petitioner, Andrew J. Turner.”

Besides this, there was, under the same printed heading, “For Constable,” 1 ballot for “Turner,” and 1 ballot “A. J. Turner,” which were rejected, and not counted.

There was, under the same printed heading, “For Constable,” also cast: 65 ballots “Joseph Talkington,” 39 ballots “J. Talkington,” 37 ballots “Jo.Talkington,” 17 ballots “Jos. Talkington.” 5 ballots “Joseph Talketon,” 3 ballots “Jo.Talkerton,” 2 ballots “Jo.Talketon,” 2 ballots “Jo.Talkiton,” 2 ballots “Joseph Talking,” 2 ballots “Joseph Talcaton,” 1 ballot “Joseph Talken,” 1 ballot “Joseph Talkinton,” 1 ballot “Jos. Talkenton,” 1 ballot “J. Talkton,” 1 ballot “Joseph Talkton,” 1 ballot “Jos. Takerton,” 1 ballot “Jo.Talkton,” 1 ballot “Josephas...