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Burton v. Powell

FEBRUARY 11, 1975.

IRENE BURTON ET AL., PLAINTIFFS-APPELLEES,

v.

THOMAS

v.

POWELL, DEFENDANT-APPELLANT. — (FRED M. DUNKE ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. HARRY G. COMERFORD, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

The plaintiffs-appellees (hereinafter plaintiffs) petitioned below to contest the result of the 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.)

The 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.

The 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 village 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 "full, true and correct" 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.

The complaint failed to allege that plaintiffs had voted in the April 17 election, which allegation is required by section 23-20 of the Illinois Election Code. Ill. Rev. Stat. 1971, ch. 46, par. 23-20.

After the trial court had received testimony in support of plaintiffs' claim of alleged irregularities and rebuttal testimony on behalf of the defendant, the defendant moved to dismiss the petition on the ground that plaintiffs' failure to allege in their complaint that they had voted in the election deprived the trial court of jurisdiction, as such allegation was a jurisdictional requirement under section 23-20 of the Election Code.

After both plaintiffs and the defendant had rested their respective cases, plaintiffs' counsel orally moved to amend plaintiffs' 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' motion, and, subsequently, a motion made by defendant to vacate that order was denied.

On July 3, 1973, the trial court entered an order for a recount, the pertinent part of which follows:

"The 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."

On 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.

On July 18, 1973, 4 days after the recount, defendant filed a notice of appeal from the trial court's 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.

On July 25, 1973, defendant filed with this court a motion for a stay of the enforcement of the trial court's July 3 order (ordering the recount), which motion was denied on August 13, 1973. In addition, this court, as part of the August 13 order, dismissed defendant's appeal upon the motion of plaintiffs.

On August 8, 1973, after having accepted the special commissioner's report and after having conducted further hearings, the trial court entered an order declaring Fred M. Dumke to be the duly elected "Mayor" of the Village of Oak Lawn. *fn1 ...


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