
    (No. 11299.
    Decree affirmed.)
    George A. Brinkman, Appellant, vs. Charles H. Bowles et al. Appellees.
    
      Opinion filed June 21, 1917
    
    
      Rehearing denied October 18, 1917.
    
    1. Elections—election contest is regarded as a chancery proceeding. A proceeding to contest an election is to all intents and purposes a chancery proceeding, and except as otherwise provided by statute is governed by the rules of chancery.
    2. Practice—vuhen section 81 of Practice act does not apply. Section 81 of the Practice act, authorizing a judge who did not hear the case to sign a bill of exceptions under certain circumstances, does not apply to ordinary chancery suits nor to a proceeding to contest an election, even though its terms include certificates of evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Michael Costabile, (I. T. GreenacrE, and Stedman & SoELKE, of counsel,) for appellant.
    Winston, Payne, Strawn & Shaw, (Edward W. Everett, E. B. Cresap, and William A. Bowles, of counsel,) for appellee Charles H. Bowles.
   Mr. Justice Farmer

delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Cook county in a suit brought by the appellant, George A. Brinkman, against Charles H. Bowles and Dennis K. Eindhout, to contest the election of a judge of the city court of Chicago Heights, Cook county, at an election held September 7, 1915. Brinkman was a candidate on what was known as the Home ticket, Bowles on the Judicial Republican ticket and Lindhout on the Republican ticket. The petition alleges that more than 1100 women voted for the candidates for said office at said election, and that a canvass of the returns showed Bowles received a plurality of the total men and women votes and that Brinkman received a plurality of the men votes. Bowles was declared elected and a commission issued to him. The petition filed by Brinkman to contest the election alleged that women were not legal voters at said election for the office of judge of the city court; that the}' were illegally allowed to vote and their votes counted; that of the men votes, who were the only legal voters at said election, petitioner received 858 votes, Bowles 823 votes and Lindhout 270 votes in the seven wards of the city; that he received 35 more men votes than Bowles, the next highest candidate, and that he was duly elected to said office of judge of the city court of Chicago Heights.

The city court of Chicago Heights was established pursuant to a vote of said city in 1903. In 1910 the territory known as the seventh ward of said city was annexed to the city, and-the petition alleges that the residents of said ward were not legal voters at the election for city judge held in September, 1915, and the votes of residents of said ward should not have been counted. Bowles received a plurality of both the men and women votes in said ward. If the votes of residents of that ward were not counted it would increase the plurality claimed by Brinkman to 76. The petition also alleges that mistakes and errors were made in counting the ballots; that votes were counted for Bowles which were cast for and should have been counted for petitioner ; that votes of persons not qualified electors were counted for Bowles, and that many other Unlawful and erroneous acts were committed by the judges in counting the ballots and certifying to the returns, and that said returns were incorrect, incomplete, erroneous, and did not show the correct number of votes cast for the respective candidates. The petition alleges that the city council, sitting as a canvassing board, canvassed the returns, declared Bowles elected and a certificate of election was issued.to him. The petition alleges Brinkman received more legal votes than either of the other candidates and was lawfully elected judge of the city court of Chicago Heights. Bowles answered the petition and Lindhout was defaulted. At the hearing the circuit court, following Franklin v. Westfall, 273 Ill. 402, rejected ballots cast by women and counted only the ballots cast by men. The court found and decreed that Bowles received 878 legal votes and Brinkman 876; that Bowles was elected by two plurality, and the petition was dismissed. Brinkman excepted and prayed an appeal to the Supreme Court, which was allowed on condition that he file a bond in the sum of $500 in thirty days, with surety to be approved by the court, and he was given sixty days from the date of the decree, October 28, 1916, “in which to present, settle and have signed, sealed and filed his certificate of evidence herein.”

Judge Baldwin of the circuit court of Cook county presided at the hearing arid entered the decree on October 28, 1916. On December 19, 1916, Judge Windes, one of the judges of the circuit court of Cook county, indorsed the certificate of evidence, “Presented Dec. 19, 1916—Thomas G. Windes, Judge,” and on the same date entered an order or decree reciting, in substance, that the certificate of evidence was presented to him with a motion that it be then settled, signed and sealed by the judge who presided at the hearing, or in case said judge (Judge Baldwin) was by reason of disability or absence from the State unable to hear and pass upon, allow, sign and seal the certificate of evidence, that any other judge of the court should pass upon, sign and seal such certificate of evidence, which was made up from the evidence taken down in stenographic notes and transcribed. The order recites that the certificate of evidence is now presented to said other judge of the court, who finds and orders that it is true said judge before whom the cause was tried “is by reason of inability,—that is, absence from this State on account of sickness,—unable to hear said motion and pass upon and allow and sign and seal a certificate of evidence,” and the further consideration of the motion to settle, sign and seal the certificate of evidence was taken under advisement by Judge Windes until January 15, 1917. On January 13, 1917, a decretal order was entered by Judge Windes, reciting that the parties appeared by their solicitors; that said judge had petitioner’s certificate of evidence, which was presented to him December 19, 1916, under consideration since that time, and having considered and approved the same, finds petitioner duly presented the certificate in apt time; that the delay since its presentation has not been due to any acts or omissions or faults of the petitioner; that Judge Baldwin,—the judge who heard the case,—is sick and" unable to act, and that Hon. Thomas G. Windes, “a judge of this court, acts herein.” It was therefore ordered by Judge Windes that the certificate of evidence be and it is signed and sealed by said judge and filed “all nunc pro time as of December 19, A. D. 1916.” Bowles in apt time moved this court to strike the certificate of evidence from the record and that the decree of the circuit court be affirmed. This motion was taken with the case and has been argued by counsel on both sides in separate briefs from the briefs on the merits.

In our opinion section 81 of the Practice act cannot be construed as authority for a judge other than the one who heard the case to settle and sign the certificate of evidence in an election contest, and the motion to strike the certificate of evidence is allowed.

If the error alleged as to the legality of votes cast in the seventh ward is raised by the common law record we are of opinion appellant’s position is untenable. All other errors assigned depend on the certificate of evidence. That being stricken from the record they cannot be considered.

The decree is affirmed.

Decree affirmed.  