{ "id": 2783771, "name": "Irene Burton et al., Plaintiffs-Appellees, v. Thomas V. Powell, Defendant-Appellant.-(Fred M. Dunke et al., Defendants.)", "name_abbreviation": "Burton v. Powell", "decision_date": "1975-02-11", "docket_number": "Nos. 59385, 59996 cons.", "first_page": "563", "last_page": "569", "citations": [ { "type": "official", "cite": "26 Ill. App. 3d 563" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "77 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "399 Ill. 136", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460399 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill/399/0136-01" ] }, { "cite": "39 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "379 Ill. 25", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2550721 ], "year": 1948, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/ill/379/0025-01" ] }, { "cite": "171 N.E.2d 644", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "21 Ill.2d 292", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2732107 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/ill-2d/21/0292-01" ] } ], "analysis": { "cardinality": 621, "char_count": 14032, "ocr_confidence": 0.688, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08439874293829486 }, "sha256": "73deb994c1a1409bb58f534a9205c2699212593961c49d6d98f47bea02ebb936", "simhash": "1:a52ae6ea7d565c84", "word_count": 2381 }, "last_updated": "2023-07-14T18:35:11.694582+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Irene Burton et al., Plaintiffs-Appellees, v. Thomas V. Powell, Defendant-Appellant.\u2014(Fred M. Dunke et al., Defendants.)" ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE DOWNING\ndelivered the opinion of the court:\nThe plaintiffs-appellees (hereinafter plaintiffs) petitioned below to .contest the result of th\u00e9. April 17, 1973, election for president of the village of Oak Lawn, Illinois. Defendant-appellant, Thomas V. Powell (hereinafter defendant), prevailed in that election over Fred M. Dumke, by a total vote of 9,997 for defendant to 9,993 for Dumke. (Fred M. Dumke and Ernest F. Kolb, defendants below, are not parties to this appeal.)\nThe complaint of plaintiffs was considered before a judge, without a jury, and, on July 3, 1973, the trial court ordered a recount of the ballots cast in certain precincts of the village. On August 8, 1973, following a canvass of the contested ballots and extensive hearings before the trial court, an order was entered declaring Fred M. Dumke the duly elected president of the village. It is from the August 8, 1973, order that this appeal emanates.\nThe pertinent facts are as follows. On April 17, 1973, a regular election was held in the village of Oak Lawn for president and other village officials. Thereafter, the local canvassing board declared the' defendant as the elected yillage president of the village of Oak Lawn, Illinois, defeating his opponent for the office, Fred M. Dumke, by four votes, 9,997 to 9,993. On April 24,1973, plaintiffs, as citizens and duly qualified voters of -the village, filed a verified complaint in the court below to contest the election, alleging certain irregularities in the conduct of the election and praying that the court below direct and supervise a \u201cfull, true and correct\u201d count of the ballots cast in the election, declare the election of April 17 null and void, and declare Fred' M. Dumke president of the village.\nThe complaint failed-to allege that plaintiffs had voted in the April 17 election, which allegation is required by section 23 \u2014 20 of the Illinois Election Code. Ill. Rev. Stat. 1971, ch. 46, par. 23 \u2014 20.\nAfter the trial court had received testimony in support of plaintiffs\u2019 claim of alleged irregularities and rebuttal testimony on behalf of the defendant, the defendant moved to dismiss the petition on the ground that plaintiffs\u2019 failure to allege in their complaint that they had voted in die election deprived the trial court of jurisdiction, as such allegation was a jurisdictional requirement under section 23 \u2014 20 of the Election Code.\nAfter both plaintiffs and the defendant had rested their respective cases, plaintiffs\u2019 counsel orally moved to amend plaintiffs\u2019 complaint to supply the allegation that plaintiffs had'voted in the election and further moved to present evidence in support of the allegation; The trial court granted plaintiffs\u2019 motion, and, subsequently, a motion made by defendant to vacate that order was denied.\nOn July 3, 1973, the trial court entered an order for a recount, the pertinent part of which follows:\n\u201cThe Court is of the opinion that as a result of the aforementioned presentation precincts 63, 74, 35 and 44 shall be recounted in their entirety including all objected to ballots. It is the further opinion of this Court that the objected to ballots shall be recounted in precincts 99, 26, 75 and 131. In precinct 123 the absentee ballot that was not counted shall be found and counted.\u201d\nOn July 14, 1973, the recount took place under the supervision of a special commissioner, whose report, dated July 26, 1973, was filed with the trial court on August 8, 1973.\nOn July 18, 1973, 4 days after the recount, defendant filed a notice of appeal from the trial court\u2019s order of July 3, 1973, which had ordered the recount. On July 23, 1973, defendant moved the trial court to stay the proceedings, praying that the special commissioner cease activity until the determination of the issues on appeal was made by this court. The motion for a stay was denied.\nOn July 25, 1973, defendant filed with this court a motion for a stay of the enforcement of the trial court\u2019s July 3 order (\u00a1ordering the recount), which motion was denied on August 13, 1973. In addition, this court, as part of the August 13 order, dismissed defendant\u2019s appeal upon the motion of plaintiffs.\nOn August 8, 1973, after having accepted the special commissioner\u2019s report and after having conducted further hearings, the trial court entered an order declaring Fred M. Dumke to be the duly elected \u201cMayor\u201d of the Village of Oak Lawn. Dumke\u2019s margin of victory, after the recount, was five votes.\nThis appeal was taken from the tidal court\u2019s order of August 8, 1973. The issues on appeal are:\n(1) whether the trial court lacked jurisdiction over the matter because of plaintiffs\u2019 alleged failure to comply with certain jurisdictional requirements of section 23 \u2014 20 of Illinois\u2019 Election Code (Ill. Rev. Stat. 1971, ch. 46, par. 23 \u2014 20);\n(2) whether the tidal court was without jurisdiction to proceed subsequent to the filing of a notice of appeal to this court on July 18, 1973; and\n(3) whether the recount ordered by the court below was unprecedented, inherently unfair, and inaccurate.\nI.\nDefendant\u2019s first contention on appeal is that the trial court lacked jurisdiction over the instant matter owing to plaintiffs\u2019 failure to allege that they had voted in the April 19, 1973, election, which allegation is required by section 23 \u2014 20 of the Election Code (Ill. Rev. Stat. 1971, ch. 46, par. 23 \u2014 20); the section reads:\n\u201c\u00a7 23 \u2014 20. The person desiring to contest such election shall, within thirty (30) days after the person whose election is contested is declared elected, file with the clerk of the proper court a petition, in writing, setting forth the points on which he will contest the election, which petition shall be verified by affidavit in the same manner as complaints in other civil cases may be verified. Copies of such petition shall be delivered by mail to each proper clerk or board of election commissioners who is a custodian of any ballots involved in the contest. The petition shall allege that the petitioner voted at the election, and that he believes that a mistake or fraud has been committed in specified precincts in the counting or return of the votes for the office or proposition involved or that there was some other specified irregularity in the conduct of the election in such precincts, and the prayer of the petition shall specify the precincts in which the recount is desired.\u201d\nAlthough plaintiffs\u2019 original complaint failed to allege that they had voted at the April 17 election, plaintiffs later moved to be allowed to amend the complaint to allege that they had voted in the election. The motion was granted, and each of the plaintiffs testified that they had, in fact, voted in the election. Defendant\u2019s motion to strike that testimony was denied by the trial court.\nElection contest cases shall be tried in like manner as in other civil cases. (See Ill. Rev. Stat. 1971, ch. 46, par. 23 \u2014 23, and ch. 131, par. 1.22.) Certain provisions of Illinois\u2019 Civil Practice Act govern our determination on this issue. They are contained in section 46 (Ill. Rev. Stat. 1971, ch. 110, par. 46), which reads, in its pertinent portions:\n\u201c\u00a7 46. Amendments\n(1) At any time before final judgment amendments may be allowed on just and reasonable terms * * * and in any matter, either of form or substance * * * which may enable the plaintiff to sustain the claim for which it was intended to be brought * * *.\n(2) The cause of action * * * set up in any amended pleading shall not be barred by lapse of time under any statute * * * if the time prescribed or limited had not expired when the original pleading was filed * * * even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery * * * if the condition precedent has in fact been performed * * * and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.\u201d\nWe believe that the amendment allowed in the court below meets the requirements of subsection (2) of section 46. Accordingly, the amendment relates back to the filing of the complaint and was not barred by the 30-day limitation of section 23 \u2014 20 of the Election Code. (Ill. Rev. Stat. 1971, ch. 46, par. 23 \u2014 20.) We hold, therefore, that the court below had jurisdiction over the instant matter. See Whitley v. Frazier (1961), 21 Ill.2d 292, 171 N.E.2d 644; Graves v. Needham (1942), 379 Ill. 25, 28, 39 N.E.2d 321; and Joyce v. Blankenship (1948), 399 Ill. 136, 141, 77 N.E.2d 325.\nII.\nDefendant next argues that the trial court was without jurisdiction to proceed subsequent to the filing of the notice of appeal on July 18, 1973. To put matters in perspective, a chronology of the events which transpired in the court below was:\n(1) On July 3, 1973, a recount of eight precincts was ordered by the trial court;\n(2) On July 14, 1973, the canvass and recount was accomplished and the results were made known to the parties;\n(3) On July 18, 1973, a notice of appeal from the July 3 order was filed with this court, as were the short record and a motion to stay the enforcement of the trial court\u2019s July 3, 1973 order;\n(4) On July 23, 1973, defendant moved before the trial court for a stay of proceedings; the motion was denied; and\n(5) On July 26, 1973, the trial court ordered the matter set for final hearing on August 1, 1973.\nOn August 3,1973, plaintiffs filed a motion to dismiss the appeal which had been brought by the defendant, arguing, in essence, that the trial courts order of July 3, 1973, was not a final judgment within the contemplation of either Supreme Court Rules 301 or 304 (Ill. Rev. Stat. 1971, ch. 110A, pars. 301 and 304) or section 23 \u2014 26 of the Election Code (Ill. Rev. Stat. 1971, ch. 46, par. 23 \u2014 26).\nOn August 13, 1973, this court entered an order dismissing defendant\u2019s appeal, and it is clear to us that defendant is raising again a matter which was disposed of by the August 13 order. We find that, in accordance with the August 13 order, that the order of July 3, 1973, entered in the trial court, was not an appealable order. To permit such an attempt to prematurely appeal an election contest at that stage of the proceedings would clearly frustrate, delay, and defeat the prospective adverse results of a recount, which as in this case had become known 4 days before the filing of the notice of appeal.\nIII.\nFinally, defendant contends that the recount ordered by the trial court was unprecedented, unfair, and inaccurate, in that the recount ordered was of fewer than all of the precincts in the village and of fewer than all of the votes in certain precincts. Defendant urges that in the absence of a stipulation by the parties to an election contest to recount fewer than all the precincts concerned in a contested election, there is no authority in Illinois to recount only some of the precincts contested.\nSection 23 \u2014 23 of the Election Code (Ill. Rev. Stat. 1971, ch. 46, par. 23 \u2014 23) provides in part:\n\u201cWhenever a petition for a recount has been filed as provided in this Article, any opposing candidate or any elector, under like provisions and in like manner may file a petition within 10 days after the completion of the canvass of the precincts specified in the petition for a further recount of the votes cast in any or all of the balance of the precincts in the county, municipality or other political subdivision, as the case may be.\nAny petitioner may amend his petition at any time before the completion of the recount by withdrawing his request for a recount of certain precincts, or by requesting a recount of additional specified precincts. The petitioner shall deposit or shall cause to be deposited, such amounts of money as the court may require as security for costs for such additional precincts as the court may deem reasonable and proper.\u201d\nIn our opinion, the legislative intent underpinning the last-quoted statutory provision could not be more clear: The recount in a contested election can be limited to those precincts where errors and irregularities existed which might alter the outcome \u00f3f the election.\nIn the case at bar, the partial canvass of precincts was completed on July 14, 1973, and, thereafter, defendant, pursuant to section 23 \u2014 23, had 10 days within which to petition \u201c* * * for a further recount of the votes cast in any or all of the balance of the precincts * * *.\" Defendant did not avail himself of the rights under section 23 \u2014 23 and cannot now be heard to complain.\nDefendant also suggests in his brief on appeal that some ballots may have been counted twice. However, there is absolutely nothing in the record to support such a theory, and, defendant had the responsibility and full opportunity \u2014 not only before this court, but before the trial court as well \u2014 of pointing to support in the record for his theory. He has not done so. We have reviewed the record, exhibits and transcript of the hearing on the special commissioner s report and we reject defendant\u2019s theory as highly speculative, conclusory and without support in the record.\nFor these reasons, therefore, we affirm the judgment of the circuit court of Cook County.\nJudgment affirmed.\nSTAMOS and LEIGHTON, JJ., concur.\nAlthough the order refers to the office as \u201cMayor\u201d and the statute describes the office as \u201cPresident\u201d the titles over a long period.of time in Illinois are used interchangeably and no question on that point has been raised in this appeal;", "type": "majority", "author": "Mr. PRESIDING JUSTICE DOWNING" } ], "attorneys": [ "Peterson, Ross, Rall, Barber & Seidel and Burton S. Odelson, both of Chicago (Elroy C. Sandquist, Jr., and John W. McCullough, of counsel), for appellant.", "Gierach, Stambulis & Schussler, Ltd., of Oak Lawn (Will Gierach, of counsel), for appellees." ], "corrections": "", "head_matter": "Irene Burton et al., Plaintiffs-Appellees, v. Thomas V. Powell, Defendant-Appellant.\u2014(Fred M. Dunke et al., Defendants.)\n(Nos. 59385, 59996 cons.;\nFirst District (2nd Division)\nFebruary 11, 1975.\nPeterson, Ross, Rall, Barber & Seidel and Burton S. Odelson, both of Chicago (Elroy C. Sandquist, Jr., and John W. McCullough, of counsel), for appellant.\nGierach, Stambulis & Schussler, Ltd., of Oak Lawn (Will Gierach, of counsel), for appellees." }, "file_name": "0563-01", "first_page_order": 589, "last_page_order": 595 }