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Lang v. Board of Ed. of Comm. Sch. Dist. No. 16

JUNE 3, 1969.

HERBERT LANG, ET AL., PETITIONERS-APPELLEES,

v.

BOARD OF EDUCATION OF COMMUNITY SCHOOL DIST. NO. 16 BY ORDER OF COURT CHANGED TO COMMUNITY UNIT SCHOOL DIST. NO. 16, IN MCLEAN, WOODFORD, DEWITT, LOGAN AND TAZEWELL COUNTIES, ILLINOIS, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Tazewell County, Tenth Judicial Circuit; the Hon. C.M. WILSON, Judge, presiding. Affirmed and remanded.

RYAN, J.

This is an interlocutory appeal over certain procedural points raised in a suit brought to contest a school bond election. Although the original petition contesting the election was filed within the thirty-day period provided by law, (Ill Rev Stats 1967, c 46, § 23-20), it suffered from two substantial defects. The petition was defective in naming as the respondent the Board of Education instead of the School District itself which is required by statute to be made the respondent in such proceedings (Ill Rev Stats 1967, c 46, § 23-24). It was further defective in challenging only the validity of the election and not the result thereof, (Ill Rev Stats 1967, c 46, § 23-24). After the expiration of the statutory period within which an election petition may be filed, but within the time to plead thereto, respondent filed a motion to dismiss the petition. Petitioner thereupon moved for leave to amend the petition by making the School District the respondent and for leave to amend the language of the petition so as to challenge the result of the election. Both amendments were allowed by the Court and the motion to dismiss was then denied. These rulings of the Court are the subject of this appeal.

Respondent contends that since the contest was not brought against the proper party within the time allowed by law and since the original petition failed to state a cause of action in not challenging the result of the election, that the Court lacked jurisdiction to allow petitioner's two amendments after the time had expired for bringing the contest. Respondent concludes that even the amended petition is fatally defective since some of the sworn allegations are on information and belief only.

We believe that the original petition was sufficient to confer jurisdiction on the Court for purposes of subsequent amendment. While it is true that the procedure for maintaining a school election contest is set forth in sections 23-19 through 23-30 inclusive of the Election Code, and that these sections control to the extent to which they regulate procedure, (Ill Rev Stats 1967, c 110, § 1), the Civil Practice Act applies as to matters of procedure not regulated by the Election Code. Graves v. Needham, 379 Ill. 25, 39 N.E.2d 321.

Section 46(4) of the Civil Practice Act provides that a cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met:

(a) The time had not expired when an original action was filed.

(b) The failure to join was inadvertent.

(c) Service was in fact had upon the person, his agent or his partner.

(d) The person knew of the action within the time that the action might have been brought against him.

(e) The original and amended cause of action grew out of the same cause of action.

(Ill Rev Stats 1967, c 110, § 46(4)).

There can be no argument as to conditions (a), (c), (d) and (e). The original petition was filed in time. Service in this case was obtained upon the President of the School Board of the School District and hence its agent and copies of the petition were sent by certified mail to and received by both the President and Secretary of the respondent, all within the time during which the contest could be brought. The same cause of action is involved.

Was the petitioner's act of making the Board of Education the party defendant instead of the School District as required by statute inadvertent within the meaning of the Civil Practice Act? The Trial Court felt that it was. A possible explanation for this inadvertence may have been found in the form of the ballot itself which reads: "Shall the Board of Education . . . issue bonds . . .?" In the case of Silver v. Lee Shell Equipment Corp., 31 Ill. App.2d 266, 175 N.E.2d 287, where the same point was passed on, the Appellate Court said at page 269:

"The dictionary defines `inadvertent' as: `Not turning the mind to a matter; heedless; negligent; inattentive; . . .' Webster's New International Dictionary, Second Ed. It appears to us that the word was used in that broad sense in the ...


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