Webster v. Gilmore

• Decision Date: 30 September 1878
• Citation: 91 Ill. 324,1878 WL 10271
• Parties: JAMES WEBSTERv.LAWRENCE H. GILMORE.
• Court: Illinois Supreme Court

91 Ill. 324

1878 WL 10271 (Ill.)

JAMES WEBSTER

v.LAWRENCE H. GILMORE.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the County Court of Warren county; the Hon. ELIAS WILLETTS, Judge, presiding. Messrs. PORTER & MOSHER, for the appellant.

Messrs. STEWART, PHELPS & GRIER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

An election was held in the town of Spring Grove, in Warren county, in this State, on the 3d of April, 1877, at which Gilmore and Gulaw were each voted for as candidates for the office of supervisor of the town. On counting the vote at the close of the election each candidate was found to have received 139 votes. Lots were thereupon drawn, and Gilmore drew the successful lot, and entered upon the duties of the office. Webster (appellant) chose to become a contestant, and filed a written statement in the county court of that county within 30 days after Gilmore was declared elected, and, after answer and replication, the cause was heard at the October term, 1877, and judgment rendered in favor of appellee. From that judgment Webster appeals to this court and asks a reversal.

By the election law, jurisdiction is conferred on the county court to hear and adjudicate in contested elections for county officers, and an appeal is given to this court in the same manner and upon like conditions as is provided by law for taking appeals in cases in chancery from the circuit courts. Section 8 of the act creating Appellate courts (Sess. Laws 1877, p. 70,) allows appeals from and writs of error to the circuit courts or the Superior Court of Cook county or from city courts. Section 88 of the Practice act of the same session (Sess. Laws, p. 153,) only refers to the same courts in connection with appeals to or writs of error from the Appellate courts.

But the act of the 21st of May, 1877, (Sess. Laws, p. 77,) provides that “appeals and writs of error may be taken and prosecuted from the final judgments and decrees of the county courts to the Supreme Court or Appellate Court, should such a court be established by law, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases and cases of forcible detainer and forcible entry and detainer.” Under this act, appeals and writs of error lie to bring cases of the character named to this court, but since the establishment of Appellate courts they lie to those courts. But it is seen that a contested election case is not provided for unless it is a common law case. Such cases were not know to the common law in the mode prescribed by the statute. Other actions and modes were resorted to for the purpose. But our statute has conferred the power on the county court, and prescribed the practice and given an appeal to this court. The appeal in this class of cases is not taken away by this act of 1877.

It follows, that the appeal in this case did not lie to the Appellate Court. The appeal was therefore properly brought to this court, and the questions raised by the assignment of errors are before us for consideration.

It is charged, in the petition filed in the county court for the recanvass of the vote, on the contest, that there were five persons, who were not legally qualified electors, who voted for appellee. The answer alleges that there were a number of illegal votes cast for Gulaw, and denies that illegal votes were cast for appellee. After hearing the evidence, the county court held that Gilmore was duly...