159 N.E. 237 | Ill. | 1927
An election was held in Community High School District No. 36 of Pulaski county on January 22, 1927, upon propositions to purchase a school house site, to authorize the board of education to build gymnasiums upon two sites, and to issue $39,000 of bonds for the purpose of constructing the two gymnasiums. M.D. Brelsford and others filed a petition to contest the election. The court sustained a motion to dismiss the petition on the ground that it was not filed within thirty days from the date of the election, and the petitioners appealed. *29
The facts are not in dispute. On Saturday afternoon, February 19, the petitioners' attorneys went to the office of the circuit clerk with a petition and found the office closed and the doors locked. They were unable to find the circuit clerk. They went to his residence, but he was not there. His daughter, however, who was also his deputy, was there but declined to go to the office as they requested. The petition was given to her, the filing fee was paid and accepted and the file-mark placed on the petition, which was placed on the piano in the house and on Wednesday, February 23, was taken to the clerk's office. The summons was issued, served and returned on Monday, February 21. These facts appear by the summons and the return on it and by the testimony of the president of the board of education, the clerk and his daughter, the deputy, and there was no contradiction of this evidence.
The court having announced his decision, the appellee's attorneys called the president of the appellee and asked him to state when the result of the election was declared, to which the petitioners objected, insisting that the further examination of the witness should not be allowed after the case had been disposed of, for the purpose of curing the record after the hearing of all the evidence and the decision of the court, the prayer of appeal by the petitioners and the granting of the appeal, and for the further reason that the petitioners and witnesses had left the court room and were beyond the call of the attorneys for the petitioners. The court overruled the objection, saying that it was in the discretion of the court, and that all necessary time would be given the petitioners to produce evidence if it was asked for. The witness then testified that he was a judge of election, was present when the votes were counted and that they were counted immediately after the polls were closed, and the result was declared the same day, January 22. The cause was still under the control of the court, and it was in the discretion of the court to admit further evidence *30
which had been inadvertently omitted. The record of a judgment is under the control of the court during the term at which it is rendered, and the court may set it aside, award a new trial or allow amendments, so as to make the record conform to the facts and to correct mistakes. (Edwards v. Irons,
The appellants argue that the statute only requires the persons desiring to contest an election to file their petition with the clerk of the proper court and that they should not be penalized for the clerk's negligence, and they citeHamilton v. Beardslee,
The case of Old Colony Street Railway v. Thomas,
Section 6 of chapter 25 of the Revised Statutes requires the clerk of the circuit court to keep his office at the court house and keep it open and attend to its duties from eight o'clock in the morning until five o'clock in the evening of each working day, except legal holidays. It contemplates that his official business should be transacted at that place. It is the duty of the clerk to preserve there, in rooms provided by the county, all the files and papers of the court, make, keep and preserve complete records of all the proceedings and determinations of the court and keep the books and records required by law. All papers in a cause should be preserved by the clerk, and their depositary is the office of the clerk, and such papers should not be taken from the office except with leave of the court. (Hartford Fire Ins. Co. v. Vanduzor,
On the motion to dismiss the petition it was proper to show the facts in regard to the time of its filing. InHamilton v. Beardslee, supra, on motion to set aside a default in an action of assumpsit, the defendant's attorney swore that he examined the files in the case in the clerk's office on January 22, 1869, and no declaration was then filed; that he made another examination on January 29, but still none was filed; that on February 1, the return day, he made an examination and found a paper purporting to be a declaration in the case, but it had no file-mark on it. *34 The first he knew of it was on this day, and he then told his client that he was not bound to plead at that term. He also stated that the plaintiff's attorney admitted, in the presence of the court, that the file mark had been placed upon the declaration on the second day of the term. The plaintiff's attorney swore that he prepared a declaration on January 1, 1869, and sent it by his clerk to be filed in the case by the clerk of the superior court, and the attorney's clerk swore that he took the declaration to the clerk and filed it in his office on the desk usually occupied by Col. Jacobson, in the presence of several deputies who were there and saw him. The superior court overruled the motion to set aside the default, but this court, on appeal, reversed the judgment, holding that the statement of the plaintiff's attorney's clerk did not show that the paper was filed. It was said that all know that to file a paper in a cause it must be placed in the hands and under the control of the clerk. It must pass into his exclusive custody and remain within his power. Not only so, but the purpose and object is to render it a part of the records of his office, and that object must be communicated to him in some manner capable of being understood. The acts related by the clerk did not constitute a filing of the declaration. It was further held that the clerk had no authority to mark the paper filed and antedate the indorsement, and his doing so did not alter the rights of the parties. That is the situation here. The petition was not filed in the court until February 23, and the clerk was without authority to antedate the indorsement of filing as February 19.
Since the petition was not filed within the time prescribed by law, the order dismissing it is affirmed.
Order affirmed. *35