Rafferty v. McGowan

Citations

• 136 Ill. 620
• 27 N.E. 194

Syllabus

<p>1. Contested election—matters in defense. In a proceeding to contest an election, the defendant may interpose', by answer, any matters which show the contestant is not equitably entitled to the relief sought by his petition.</p> <p>2. Same—resignation of incumbent—and another appointed—rights and remedies of contestant. A township officer whose election was about to be contested, resigned the office, and his successor was appointed and had qualified before suit brought to contest: Held, that as the defendant, who was the person who had resigned, was not claiming the office, the proceeding to contest was improperly brought against him.</p> <p>3. Where one who has been declared elected to an office, after qualifying, resigns, and his successor is appointed before any proceeding is brought to contest his election, the remedy of the other party who desires to contest the election is by quo warranto against the incumbent in office holding by appointment.</p> <p>4. Where a person against whom a quo warranto is filed claims the office by appointment, to fill a vacancy, he must show there was a vacancy at the time of his appointment. If the person resigning the office was not legally elected and qualified as such, his resignation would not authorize the appointment of his successor.</p> <p>5. On quo warranto by a candidate claiming to have been elected to an office by a majority of the legal votes cast, against one appointed to fill a supposed vacancy by the resignation of the candidate receiving a certificate of election, the validity of the election of the latter will be directly involved, and if it appears that the relator received the most legal votes, the court may order a judgment of ouster against the incumbent, and place the relator in office.</p> <p>6. Same—practice—withdrawing exceptions to answer, and leave to reply—discretionary. In a proceeding in the county court to contest an election, the contestant excepted to the answer, which was overruled, and judgmen