Yocum v. Town of Waynesville

Mr. Justice Beeese delivered the opinion of the Court: An action was commenced before a justice of the peace of DeWitt county, by Alvan Lane and others, describing themselves as commissioners of highways of the town of Waynesville, against Elijah Yocum, to recover the penalty of ten dollars for his refusing to serve as overseer of highways, he having been thereto duly chosen, as alleged. A judgment was recovered against him before the justice of the peace for ten dollars, from which he appealed to the Circuit Court. In that court the defendant entered a motion to dismiss the suit for want of a bond for costs. This motion was denied. The Circuit Court then allowed the plaintiffs to strike out their names as plaintiffs, and also the title of their office, permitting the suit to progress in the name of “the town of Waynesville,” that being the portion of the title of the suit remaining after this striking out. The cause then proceeded to trial and a judgment for ten dollars was recovered against the defendant, to reverse which he has appealed to this court. The appellant assigns for error the refusal of the Circuit Court to dismiss the suit for want of a bond for costs; in permitting the title of the cause to be amended in the manner stated, and because appellant was not notified of his election as overseer. Upon the first point, it is only necessary to say, that the motion to dismiss for want of a bond for costs was of a dilatory character, and should have been made at the earliest moment before the justice of the peace. It was not then made, and if a bond was necessary it was too late to make the motion in the Circuit Court for the first time. Adams v. Miller, 12 Ill. 27; Same v. Same, 14 id. 71; Trustees v. Walters, 12 id. 154. As to the second point, the township organization law by section two of article twelve, requires that in suits by or against a town, the town shall sue and be sued by its name, and by section ninety-six of article seventeen, suits for penalties shall be in- the name of the town to which. the same is forfeited. This suit was brought in the names of certain individuals, styling themselves “ commissioners of highways of the town of Waynesville.” The amendment allowed by the court, preserved the suit in the proper name in which it should proceed, and all the description preceding the words, “ the town of Waynesville,” was properly rejected by the court as surplusage. The authority for this, is the cáse of Shoudy v. The School Directors, 32 Ill. 290, and Botkin et al. v. Osborn, ante, 101. Upon the remaining point, that the appellant was not notified of his election: Section sixteen of article five provides that the supervisor, town-clerk, assessor, overseer of the poor, collector, commissioners of highways, constables and justices of the peace, shall be chosen by ballot. By section Seventeen, when the election is by ballot, a poll list must be kept by the clerk of the meeting, on which is to be entered the name of each person whose vote shall be received. By section twenty, at the close of every election by ballot, the presiding officer is required to proceed publicly to canvass the votes, and to continue it without adjournment, until it is completed; and by section twenty-two, when the canvass is completed, a statement of the result is required to be entered at length by the clerk of the meeting in the minutes of the proceedings kept by him “ which shall be publicly read by him to the meeting,” and such reading is deemed notice of the result of the election to every person whose name is entered on the poll list as a voter. By section twenty-three it is made the duty of the clerk of every town-meeting, to transmit, within ten days thereafter, to each person elected to any town office, whose name shall not have been entered on the poll list as a voter, a notice of his election. The proof shows that the name of appellant was entered on the poll list, and that he voted at that election, and the minutes Of the meeting were publicly read to the meeting, and the name of appellant read out to the meeting as having been elected overseer of highways. The appellant then had- all the notice to which the law entitled him. Section fourteen of article six provides, if any person chosen or appointed to the office of overseers of highways, or pound master, shall refuse to serve, he shall forfeit to the town ten dollars. The defendant having so refused, he became amenable to this penalty, for which the court entered judgment. „ We perceive no error in the record, and must affirm the judgment. Judgment affirmed.