author: Mr. Justice Shops

text:
    Bernard A. Eckhart et al. v. Agnes F. Irons et al.

      Filed at Ottawa

      April 3, 1889.

    1. Dedication—of the essential elements. An intention to dedicate land must be clearly and unequivocally manifested by the owner, and there must be an acceptance of the dedication.
    2. Same—extent of ground dedicated—dotted lines on plat, as limiting dedication. A plat of lots in a block showed a dotted line across the north end of the lots, twenty feet south of the street on which the lots fronted, with the words along such dotted line, “line of front of building twenty feet from the street.” The lines indicating the east and west boundaries of the lots did not stop at such dotted line, but extended to the street: Held, that such dotted line did not show an intention to dedicate the twenty feet off the north end of the lots, but on the contrary, the words along such line "clearly negatived any such intent. Such line is but a designation on the plat of the front line of the buildings to be erected thereon.
    3. Town peat—figures on plat — whether indicating the width and length of the lots. A certificate of the acknowledgment of .the plat of an addition showed that the figures in black ink near the center of the lots indicated the number of such lots. There were other figures along the ends and sides of the lots, but nothing, either on the face of the plat or in the certificates thereto attached, to show what they meant: Held, that such last named figures were meaningless, and could not be taken as indicating the width and length of the lots; but if such figures appeared to represent distances, they would have to give way to the actually established metes and bounds of the lots.
    4. Conveyances—limitation as to use of parts of the lots conveyed— a deed construed. The plat of an addition to a town showed a dotted line across the north end of the lots, twenty feet south of their northern termini, marked “line of front of buildings.” The deeds of the proprietor granted the lots by their numbers upon the plat. After the granting clause were the words, “together with the exclusive úse of the court-yard between said lots and the street,” thereby referring to the twenty-foot strip off the north end of the lots, “upon condition that such yard shall only be used as a front-door yard, and that said party of the second part shall put no building upon said yard except front-door steps, nor erect any fence of unusual height, which shall obstruct the view of the neighborhood Held, that such restriction in the use of the north twenty feet was intended for the benefit of the other lots fronting on the same street, and to the extent of such restriction it created an implied equitable servitude of each lot in favor of the other lots.
    5. In such case, each purchaser taking such a deed took the estate burdened with alike servitude in favor of all the lots, and an equitable easement attached to each and every lot so conveyed, so that the equitable rights and burdens of each lot were mutual and reciprocal, and each lot owner was subjected to the equitable burden, and entitled to the enjoyment of the easement.
    6. Such clause in a deed for a lot did not have the effect of limiting the grant to the dotted line, as the grant was of the whole lot as platted. The clause, “together with the use of the court-yard between said lot and the street,” must be construed with the plat, and what precedes and follows in the deed.
    7. The deeds, after such words of limitation as to the use of the court-yard, further recited: “It being the intention of the party of the first part, in reserving said court-yard, to benefit and improve the neighborhood, said reservation to continue for fifteen years from the date of record of the plat of said subdivision ; after the expiration of said term, the fee of said court-yard shall vest in said party of the second part, his heirs and assigns, without any further conveyance.” There was no> clause for forfeiture for the breach of any condition: Held, that the estate was not one upon condition, and that the title vested in the grantee to the whole of the lot, and that the clause was simply a limitation upon the use of the north twenty feet for the period of fifteen years from the recording of the plat.
    8. Same—exceptions—reservations—the distinction. The clause in the deed in this case does not create an exception, for the reason that by an exception the grantor withdraws from the effect of the grant some part of the thing itself which would otherwise be included in the grant. Nor can it, strictly speaking, be said to be a reservation, for a reservation must be to the grantor or the one creating the estate, and must be of something arising out of the thing granted, as, an easement, or the like.
    9. Same—restrictions as to use of property—not favored—but enforcible. Restrictions on the use of property held in fee are not favored, yet when the intention of the parties is clearly manifested in the creation of restrictions or limitations upon the use of the grantee, for the use of the grantor, his heirs or assigns, a court of equity will enforce the same.
    10. Same—repugnant provisions—rule of construction. "Where, in construing a deed, there is a clear repugnance between the grant and that limited in the habendum or reddendum, the latter will be required to yield to the clear words of the grant; but if the words following the grant can be so construed that all may stand together, by limiting the estate, without contradicting the grant, that construction must be adopted to give effect to each clause of the deed. Where there is a present grant, any words showing it is to take effect in futuro are inconsistent with the grant.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Messrs. Abbott, Oliver & Showalter, and Messrs. Holden & Farson, for the plaintiffs in error:
    A person can not have an easement in his own land. Bridge Co. v. Curtis, 103 Ill. 410.
    Where one owns a piece of land, and so arranges it that there would he an easement in one parcel were it the land of another, the easement exists upon the severance of the title. Morrison v. King, 62 Ill. 30; Ingals v. Plamondon, 75 id. 118.
    Platting concludes the original owner, and all claiming under him, and operates by way of estoppel. Canal Trustees v. Havens, 11 Ill. 556; Alvord v. Ashley, 17 id. 363.
    When purchasers are induced to believe that lands are dedicated to future lot owners, as, for a landing place, the dedicator can not defeat the same. City v. Transportation Co. 12 Ill. 59.
    The dedication for the benefit of future lot owners, as, for a landing, (marked “reserved,”) may be by plat alone, when it is evident what the dedication is for. Godfrey v. City, 12 Ill. 35.
    The foundation of the doctrine of easements is a disposition and severance. Morrison v. King, 62 Ill. 30; Ingals v. Plamondon, 75 id. 118.
    The conveyance of a lot by plat conveys no title beyond the limits of the lot, yet an easement appurtenant to the lot would pass. Gebhardt v. Reeves, 75 Ill. 301; Smith v. Heath, 102 id. 130.

      The deed did not create an easement, and could not convey it. The easement in the land in front of lots 17 and 18 could not be conveyed by a deed conveying those lots, because the easement was appurtenant to other lots.
    An easement appurtenant can only pass by a deed conveying the lands to which it is appurtenant. Railroad Co. v. Koelle, 104 Ill. 455; Koelle v. Knecht, 99 id. 396; Garrison v. Rudd, 19 id. 564; Fitch v. Johnson, 104 id. 121.
    The easement appurtenant to lot 5, block 9, for light, air, prospect and view, over the court-yard in front of lots 17 and 18, would not pass by a conveyance of lots 17 and 18, or by a conveyance of the court-yard itself. How, then, can it be said that any one of the deeds is material? Hadden v. Shoutz, 15 Ill. 584; Garrison v. Rudd, 19 id. 564.
    Mr. H. F. White, for the defendants in error:
    A dedication is the act of devoting or giving some property to some proper object in such manner as to conclude the owner. 2 Smith’s Lead. Cas. 180; Hunter v. Trustees, 6 Hill, 407.
    At common law a negative easement of this character can only be acquired by grant, commonly by deed, or by prescription, which presupposes a grant. In this State it can not be acquired by prescription. Guest v. Reynolds, 68 Ill. 478.
    In order that there shall be a grant or deed, there must be a grantee. Lafiin was only a party to the plat, and there was no grantee or private easement claimed by the plat. Railroad Co. v. Railway Co. 85 Ill. 212.
    A mere license to use property, although houses are built about it, as a street, is not a dedication. Washburn on Easements, (3d ed.) *151; Morse v. Stoker, 1 Allen, 150.
    An intention to dedicate may be shown by writing, by declaration or by acts, and it must be unequivocal. Gentleman v. Soule, 32 Ill. 279; Washburn on Easements, (3d ed.) *133; Rees v. City, 38 Ill. 322.

      It is purely a question of intention, which a deed shows. Godfrey v. City of Alton, 12 Ill. 29; City of Alton v. Transportation Co. id. 55; Marcy v. Taylor, 19 id. 634; Waugh v. Leech, 28 id. 488.
    The intention governs. Harding v. Town of Hale, 61 Ill. 192; Rees v. City, 38 id. 322; Woodyear v. Hadden, 5 Taunt. 125; Insurance Co. v. Littlefield, 67 id. 368; Tillman v. People, 12 Mich. 409; Holdane v. Trustees, 23 Barb. 103.
    Mere acting so as to lead persons to think that a dedication is made, will not make a dedication, if there be an agreement that explains the transaction. Marcy v. Taylor, 19 Ill. 636; Barraclaugh v. Johnson, 8 A. & E. 99.
    The intention of the owner must be clear and unambiguous. McIntyre v. Storey, 80 Ill. 127; Chicago v. Johnston, 98 id. 618; Kelly v. Chicago, 48 id. 389; Angelí on Highways, secs. 11, 143-151; Smith’s Lead. Cas. 182; Insurance Co. v. Littlefield, 67 Ill. 368.
    Figures on a plat are not sufficient to make out a dedication. Village of Winnetka v. Prouty, 107 Ill. 218.
    This dedication by the plat is not sufficient, and is no grant. Railroad Co. v. Railroad Co. 85 Ill. 211.
    The plat conveyed no fee to the public. Trustees v. Walsh, 57 Ill. 367.
    The dotted line on the plat is not a dedication. -Reversion clause construed. Effect of taxing land. Town of Princeton v. Templeton, 71 Ill. 68; Van Valkenburg v. Milwaukee, 30 Wis. 338.
    In platting a village, a square left blank, and no allusion made to it, is no dedication. Princeville v. Auten, 77 Ill. 325.
    A strip marked “depot” on a plat is not enough, although used for years. McWilliams v. Morgan, 61 Ill. 89.
    A plat is explained by the deed. Assent thereto by mortgagee, and right to access to street from the lot; doctrine of: Smith v. Heath, 102 Ill. 146; Hague v. Inhabitants of Hoboken, 23 N. J. 354.

      Unless the easement is obvious as to the adjoining owner, it must exist on premises, and be apparent, open and visible, or be of no effect. Ingals v. Plamondon, 75 Ill. 118; Butterworth v. Crawford, 40 N. Y. 349.
    This reservation of a court-yard was limited by the deed to fifteen years. But there must be a permanent or perpetual restraint upon the use and mode of occupation, to constitute an easement. Washburn on Easements, (3d ed.) 100; Gilbert v. Peteler, 38 Barb. 488.
    In the construction of the deed from Baffin to Prescott, the 'intention must control, and effect given thereto. City of Peoria v. Darst, 100 Ill. 609; Piper v. Connelly, 108 id. 646; Wimberly v. Hurst, 33 id. 166; Manufacturing Co. v. Wagon Co. 91 id. 230; Mortgage Co. v. Gross, 93 id. 483.
    The intention of the parties must be gathered from the entire deed. A recital may qualify general words. Railroad Co. v. Koelle, 104 Ill. 457; Allen v. Holton, 20 Pick. 463.
    The words “upon condition,” in a deed, may be construed as a restriction or limitation, when the intention requires. Fuller v. Ames, 45 Vt. 400.
   Mr. Justice Shops

delivered the opinion of the Court:

On the 14th day of January, 1863, Matthew Baffin, being the owner of blocks 5, 6 and 9, in canal trustees’ subdivision of the west half, and the west half of the north-east quarter of section 17, town 39 north, range 14 east, caused the same to be laid out into lots and alleys, and a plat thereof to be made and recorded. The following is a copy of the plat of block 9, in reference to which this controversy arises:

There is no reference to the dotted line shown on the plat, and supposed to he twenty feet from Monroe and Adams streets, either in the acknowledgment of the plat, in the surveyor’s certificate, or in any of the subsequent deeds of the lots made by said Laflin. The surveyor certifies that he had surveyed and subdivided the blocks into lots, streets and alleys, and that the annexed plat is a true representation of said survey and subdivision. The certificate of acknowledgment of the plat is, that Laflin, etc., acknowledged that they were proprietors of the blocks, (naming them,) and that the figures in black ink near the center of said blocks (lots) indicate the number of said lots, and that the figures in red ink indicate the value of said lots. There is nothing on the face of the plat, or in the certificate of the surveyor, or of acknowledgment, to indicate what the figures appearing upon the plat were intended to represent, other than as above stated. The numbers in red ink, indicating the price of lots, are omitted, as no question arises in respect thereof. The figures in black ink near the center of the lot, from 1 to 55, inclusive, indicate the number of the lot, showing that block 9 was divided into fifty-five lots. What the other figures upon the plat mean is left to conjecture.

On the 22d day of June, 1863, Laflin and wife, by warranty deed, conveyed to Eli S. Prescott, lots 17, 18, 22, 23, 28, 29, and the east twenty feet of lot 27, in said block No. 9, with all the appurtenances thereto'belonging, which deed also contains this clause: “Together with the exclusive use of the courtyard between said lot and the street, upon condition that said yard shall only be used as a front-door yard, and that said party of the second part shall put no building upon said yard, except front-door steps, nor erect any fence of unusual height which shall obstruct the view of the neighborhood, nor create nor allow any nuisance which may be objectionable to the neighbors; and, also, upon condition that said party of the second part shall pay all taxes and assessments which «ba.11 be levied upon said court-yard, it being the intention of said party of the first part, in reserving said court-yard, to benefit and improve the neighborhood, said reservation to continue for fifteen years from the date of record of the plat of said subdivision; and after the expiration of said term, the fee of said court-yard shall vest in said party of the second part, his heirs and assigns, without any further conveyance. But in case the conditions upon which the use of said court-yard is granted to said party of the second part shall be violated, • then and in that case the said party or parties of the second part, their heirs, executors, administrators or assigns, shall forfeit and pay to said parties of the first part, their heirs, executors, administrators or assigns, the sum of $10 per diem for each and every day said nuisance or obstruction shall remain thereon, said penalty recoverable before any justice of the peace or other court of record.”

By several mesne conveyances, defendant Agnes F. Irons became the owner of lots 17 and 18, in block 9. Under the deed to Prescott, the parties had entered into possession of the lots according to their description, and upon the purchase by Mrs. Irons of said lots 17 and 18, she went into possession thereof, as it appears, to the lines of said lots east and west, as possession had been delivered by Laflin. There is, however, no controversy as to the width of these lots east and west. It also appears that Laflin had made sales of the other lots in that block fronting on Monroe street, and conveyed the same ' by deeds containing the same provision as in that to Prescott. Most of the lots fronting on Monroe street were subsequently improved by the erection of substantial buildings thereon, on a line twenty feet south of said street. Shortly before the filing of the bill in this case, Mrs. Irons commenced the erection of six brick and stone dwelling-houses on lots 17 and 18, fronting on Laflin street, the north one thereof extending to the line of Monroe street, and being on the twenty feet designated as a court-yard in said deed. The plaintiffs in error, being owners of other lots in said block 9 fronting on Monroe street, filed this bill to compel Mrs. Irons to remove the building on said twenty-foot strip of land, to enjoin the erection of any building thereon, and to compel her to front her buildings on Monroe street. At the hearing the court refused the relief prayed, and dismissed the bill.

It is insisted that Laflin, by the plat, made a dedication of the úweníy-foot strip, either to the public or to the purchasers of other lots fronting on Monroe street. An intention to dedicate land must be clearly and unequivocally manifested by the owner, and there must be an acceptance of the dedication. The dotted line across the north end of the lots can not be said to afford evidence of an intention to dedicate twenty feet off of the north end of the lots, to the public, for a street, or to widen Monroe street at that point. (See Princeton v. Templeton, 71 Ill. 68.) Such an intent is clearly negatived by the words written on or along such dotted line, to-wit, “line of front of buildings twenty feet from the street.” This is also clearly manifest from the language of the deed. The east and west lines of the lot, it will be observed, extend through to Monroe street, and if the ground north of the dotted line was not intended to constitute a part of the lots, as designated on the plat, such lines would have stopped at the dotted line, or there would have been other indications of the intent that the north boundary of the lot should be the dotted line. Exactly the reverse is true. The dotted line is manifestly not intended as the north line of the lot, which it was intended should be bounded by the south line of Monroe street, but is a designation on the plat of the front line of the buildings to be thereon erected. This becomes very manifest when the words accompanying the dotted line are considered in connection with the reservation in the deed, which will be considered further on. This case differs from that of Smith v. Heath, 102 Ill. 130, in that in the center of the plat in that case was shown a square, not intersected by the lines of lots, and designated on such plat as “Aldine square,” and most, if not all, of the lots were shown upon the plat to abut or front upon such square.

This plat fails to show an intention to dedicate the north twenty feet of the lots, either to the use of the public or to the use of the purchasers of other lots. It is true that the figures “105,” on lots 13 and 18, if intended to indicate feet, do not correctly describe the length of the lot. These lots, from. Monroe street to the alley, are one hundred and twenty-five feet deep,, and the figures “105” would indicate the number of feet from the alley to the dotted line, or south side of the court-yard. But, as before said, there is nothing to indicate or show what such figures represent, either on the face of the plat or in the certificate, unless we are justified in assuming, from the facts appearing, that they mean the length of the lot in feejt. (City of Belleville v. Stookey, 23 Ill. 441; Village of Winnetka v. Prouty, 107 id. 218; Town of Lake v. LeBahn, 120 id. 98.) As we have seen, the plat shows the lots extend from Monroe street to the alley, and the figures “105,” if intended to represent feet, if added to the twenty feet between the dotted line and Monroe street, would correctly designate the true length of the lot, as platted. But if the calls, by length of the lines, are found to be incorrect, such calls must give-way to the actually established metes and bounds of the lot.

The deed from Baffin to Prescott conveys lots 17 and 18, with others, by the numbers as shown upon this plat. Following the granting clause of the deed occur the words, “together with the exclusive use of the court-yard between said lot and the street.” The court-yard here referred to is the-twenty-foot strip off the north end of the lot, and the exclusive-use of it is given “upon condition that such yard shall only be used as a front-door yard, and that said party of the second part shall put no building upon said yard, except front-door steps, nor erect any fence of unusual height, which shall obstruct the view of the neighborhood.” The grant of the lot was subject to this restriction and limitation upon the use- and enjoyment of that part thereof designated in the deed as a court-yard. This undoubtedly was intended for the benefit of the other lots fronting on the same street, and to the extent of such restriction of the use of the court-yard it created an implied equitable servitude of the lot granted, in favor of the other of said lots, and each purchaser taking such a deed, took the estate burdened with a .like servitude in favor of all the lots, and an equitable easement attached to each and every lot so conveyed, so that the equitable rights and burdens of each lot were mutual and reciprocal, and each lot owner was subjected to the equitable burden, and entitled to the enjoyment of the easement. The power of the grantor to thus impose limitations and restrictions upon the use and enjoyment of the property granted, as he may deem proper, and of the grantee t,o accept the same, can not be denied, unless opposed to public policy. Nor do we think that the clause of the deed quoted had the effect of limiting the grant. The grant was of the lots as platted. The clause, “together with the use of the court-yard between said lot and the street,” must be construed in connection with the plat, and what precedes and follows in the deed.

It is said that such exclusive use shall be upon “condition that said yard shall only be used as a front-door yard,” etc., and the intention of the parties with reference thereto is set out as follows: “It being the intention of said party of the first part, in reserving said court-yard, to benefit and improve the neighborhood, said reservation to continue for fifteen years from the date of record of the plat of said subdivision, and after the expiration of said term the fee of said court-yard shall vest in said party of the second part, his heirs and assigns, without any further conveyance.” It will be observed that there is no provision made for a forfeiture upon breach of the condition, and it is clear that the estate was not one upon condition. As before said, we think it clear that the title vested in the grantee to the whole of the lot, and that the clause quoted is simply a limitation upon the use of the north twenty feet, for the period of fifteen years from the date of the recording of said plat. It is manifest that such limitation upon the use by the grantee, was intended for the benefit of the grantor, and of all persons to whom he had or might thereafter sell such lots. The words, “said reservation to continue for fifteen years, ” can only relate to the use, or limitation upon the use, of the twenty feet designated in the deed as a courtyard, by the grantee, in the manner provided,—that is, as a front-door yard,—and that he shall not erect or build a high fence, or put any buildings thereon, “which shall obstruct the view of the neighborhood. ” The intention to create a servitude upon each lot for the benefit of all other lots is clearly manifest. Washburn on Easements, 100, and authorities.

As we have seen, the grant was of the lot, by its number, as designated on the plat, and in construing the deed, any clear repugnance between the grant and that limited in the habendum or reddendum, the latter will be required to yield to the clear words of the grant; but if the words following the grant can be so construed that all may stand together, by limiting the estate without contradicting the grant, that construction must be adopted, in order to give effect to each clause of the deed. This may be done in this case. It is expressly provided, that after the expiration of fifteen years the fee of said court-yard shall vest in the party of the second part, his heirs and assigns, without any further conveyance. That deed was therefore to be operative as a conveyance of title in fee. If the contention of plaintiffs in error is to obtain, it would be to make the deed effective in futuro, as respects the so-called court-yard. This is manifestly inconsistent with the grant, and with the evident intention of the parties. All may be rendered consistent if the clause under consideration, in its entirety, be construed as a limitation upon the use of the property for the period limited; and this accords with the expressed intent of the parties, as clearly manifested by the language employed.

Strictly speaking, it can not be said that the clause of the deed referred to is an exception, for the reason that by an exception in a deed, the grantor withdraws from the effect of the grant some part of the thing itself which would otherwise be included in the grant. Here no portion of the land is reserved or excepted out of the grant. Nor can it, strictly speaking, be said to be a reservation, for the reservation must be to the grantor or the one creating the estate, and must be of something arising out of the thing granted, as, an easement or the like. Washburn on Beal Prop. 440.

■It is not, however, material that we should determine or define the exact .nature of the several equitable rights and duties of the different lot owners, for the reason that they were limited to a term of years, which has expired: It is to be carefully observed that the restriction upon the use by the grantee, of the court-yard is expressly limited. The provision is: “It being the intention of said party of the first part, in reserving said court-yard, to benefit and improve the neighborhood, said reservation to continue fifteen years from the date of the record or plat of said subdivision; and after the expiration of said term, the fee of said court-yard shall vest in said party of the second part, his heirs and assigns, without any further conveyance.” The effect of this clause of the deed was, as before stated, to create an equitable easement in Baffin, and the other lot owners to whom he had or might convey; but the “reservation,” so-called, operated simply by way of limitation upon the use of the property by the grantees in the several deeds. 3 Washburn on Beal Prop. 437; Noble v. Illinois Central Railroad Co. 111 Ill. 437; Fuller v. Ames, 45 Vt. 400.

Bestrictions on the use of property held in fee are not favored, yet where the intent of the parties is clearly manifested in the creation of restrictions or limitations upon the use of the grantee, for the benefit of the grantor, his heirs or assigns, a court of equity will enforce the same; and the cases are numerous where the reservation of an easement, privilege or benefit, out of the granted premises, has been sustained. See Sprague v. Snow, 4 Pick. 54; Choate v. Burnham, 7 id. 274; Dyer v. Sanford, 9 Metc. 359; Fuller v. Ames, supra; 3 Washburn on Real. Prop. 441, et seq.

It was manifestly the intention of the parties that at the end of fifteen years from the date of the recording of the plat the grantee should become vested with a fee simple title in the whole of said lot extending to the line of Monroe street, free from any restriction or limitation soever. The complainants and others acquiring titled-under the deeds from Laflin, acquired the same right, and took with notice that the limitation upon the use of the property by the several grantees in such deed would terminate at the end of that period. Equity, looking beyond the mere form, and into the substance, will give effect to the intent of the parties when it can be found, and in such ease will disregard mere technical distinctions. The estate here intended to be granted was the fee, which imports absolute and unconditional ownership. As said by the learned judge who tried this case below: “If there is any doubt whether the restrictions were to cease then, (at the end of fifteen years,) or whether they were to be permanent, the existence of the doubt is to deny the existence of the easement or privilege. All doubts must be resolved in favor of natural rights, and against restrictions thereon.”

The decree of the circuit court dismissing the bill was properly entered, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this ease in the Appellate Court, took no part in its decision here.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Byron L. Smith, Receiver, v. George F. Kimball.

      Filed at Ottawa

      May 16, 1889.

    1. Assignment on ebbob—/or what cause—and by whom—as to judgment entered pro forma, by consent. A party can not complain of an •error which he has himself induced the court to make, or has consented to.
    2. So where the judgment or decree of the trial court is affirmed by the Appellate Court, pro forma, on the motion of the appellant, under •a stipulation of the parties that the decree or judgment shall be so •affirmed, the appellant, on an appeal to this court, can not assign for •error the judgment of the Appellate Court so entered at his request.
    3. Appellate Coubt—duty to hear and decide cases on the merits. Where a case is taken to the Appellate Court, it is the duty of that court to hear and decide it on its own judgment, and file a written opinion, briefly giving its reasons for its decision.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook •county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Walker & Eddy, for the appellant.
    Mr. H. W. Wolseley, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court :

Bill was filed in the Superior Court of Cook county, praying the appointment of a receiver for the Traders’ Bank of Chicago. Upon hearing, the Superior Court decreed that a receiver be appointed, as prayed. An appeal was taken from that decree to the Appellate Court for the First District, and thereupon a stipulation was entered into, in writing, by the solicitors of the respective parties, and filed in the Appellate Court, as follows, ■omitting the caption: “It is hereby stipulated between the parties interested in the above appeal, that the order appealed from, which was entered on the 13th day of December, A. D. 1888, in the Superior Court of Cook county, may be affirmed pro forma by the Appellate Court for the First district, State of Illinois, and the cause carried direct to the Supreme Court.”' The Appellate' Court thereafter entered an order in the ease, as follows, from which this appeal is prosecuted, namely, (omitting the caption): “This day came said parties, by their respective counsel, and, on motion of appellant, it is ordered by the court that the judgment of the Superior Court of Cook county be and the same is hereby affirmed, in all things, pro* forma, in accordance with the stipulation filed herein.” Then follow a judgment for costs and an order allowing an appeal to this court. The several errors assigned are, in effect, that this judgment is erroneous, giving specific reasons.

It is obvious from the foregoing recitals,—first, that the judges of the Appellate Court exercised no judgment upon the questions involved in this case, for the pro forma entry was. made, not because they thought the merits of the case demanded it, but because they were requested to enter it; and second, that the judgment entered was requested by appellant to be entered precisely as it was entered, and if there was error committed thereby, it was therefore committed by the request of appellant.

When a case is taken to the Appellate Court, it is the duty of that court to hear and decide it, and file a written opinion briefly giving its reasons for its decision. See section 17 of act to establish Appellate Courts, (Laws of 1877, p. 69,) and act amendatory thereof, (Laws of 1885, p. 65, sec. 1.) But a-party can not complain of an error which he has himself induced the court to make. And so here, if appellant is adversely affected by an erroneous judgment, it is simply because he consented and requested that it be entered. He can not assign error upon it. Armstrong et al. v. Cooper, 11 Ill. 540.

The judgment is affirmed.

Judgment affirmed*


author: Mr. Justice Bailey

text:
    Nancy Harris v. The People of the State of Illinois.

      Filed at Ottawa

      May 16, 1889.

    1. Trial by jury—in criminal cases—constitutional guaranty—waiver of jury—whether allowable, so as to confer jurisdiction upon the judge. By the constitution of the State, the common law right to a trial by jury in criminal cases is guaranteed, and declared to be inviolable, and the statute requires that, except as therein provided, all trials for criminal offenses shall be conducted according to the course of the common law. It thus seems that the power to conduct criminal trials in any other mode than that which prevailed at common law is necessarily excluded.
    2. So in a prosecution for a felony, when the plea of not guilty is entered, the right to a jury trial can not be waived by the accused, so as to confer upon the court jurisdiction to try, convict and sentence the defendant without the intervention of a jury.
    3. It is true, a defendant in a criminal case may waive a trial by jury by plea of guilty. But while he may waive a trial by jury, he can not, by such waiver, confer jurisdiction to try him by a tribunal which has no such jurisdiction by law.
    4. A jury of twelve men being the only legally constituted tribunal for the trial of an indictment for a felony, it necessarily follows that the court or judge is not such tribunal, and that in the absence of a .jury he has, by law, no jurisdiction. If he attempts to sit as a substitute for a jury, and perform their functions in such eases, his act must be regarded as nugatory.
    5. Court—for trial of criminal cases—of what officers it must consist. The Criminal Court of Cook county, and the circuit courts, when properly constituted for the trial of criminal cases, and especially for the trial of felonies, consist not merely of a judge, but also of a clerk, a sheriff, a State’s attorney and a jury. The judicial functions brought into exercise in such trials are parceled out between the judge and the jury, and so long as there is no law authorizing it, the functions to be exercised by the jury might just as well be transferred, by agreement of the parties, to the clerk or sheriff, as to the judge.
    6. Jurisdiction—by consent. It is a maxim in the law, that consent can never confer jurisdiction; by which is meant that the consent of the parties can not empower a court to act upon subjects which are not ■submitted to its determination -and judgment by the law. The law ¡ ■creates courts, and, upon considerations of public policy, defines and limits their jurisdiction, and this can neither be enlarged nor restricted by the act of the parties.
    Weit op Ebbob to the Criminal Court of Cook county; the Hon. Bichabd S. Tuthill, Judge, presiding.
    Mr. S. B. Minshall, and Mr. James Whittakeb, for the plaintiff in error:
    In trials for felony, the defendant can not waive the constitutional right to a jury trial, and after such waiver and trial hy the court, the finding is a nullity. Const, art. 2, secs. 2, ■5, 9; Rev. Stat. chap. 38, secs. 4, 11, 15; Bishop on Grim. Proc. (3d ed.) sec. 894; Cooley’s Const. Lim. 319 ; Proffatt on •Jury Trial, sec. 113; State v. Lockwood, 43 Wis. 405; State v. Mansfield, 41 Mo. 471; Neals v. State, 10 id. 500; Cancemi v. People, 18 N. Y. 131; Work v. People, 2 Ohio St. 304; Hill v. People, 16 Mich. 356; Commonwealth v. Shaw, 1 Pittsb. 492; Brown v. State, 8 Blackf. 561.
    It was not in the power of the legislature to provide, by ■statute, that a petit jury should consist of less than twelve ■men, nor that less than the whole twelve could return a verdict. 41 N. H. 550.
    “No person shall be deprived of life, liberty or property without due process of law." Const, art. 2, sec. 2.
    “In all criminal prosecutions, the accused shall have the right to * * * a speedy and public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” Const, art. 2, sec. 9.
    “The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” Const, art. 2, sec. 5; Commonwealth v. Shaw, 1 Pittsb. 494.
    “All trials for criminal offenses shall be conducted according to the course of the common law, except when this act points out a different mode.” Bev. Stat. chap. 38, par. 488, sec. 8.

      “Juries, in all criminal cases, shall be the judges of the law and the fact.” Rev. Stat. chap. 88, par. 491, sec. 11.
    “In cases where the party pleads ‘guilty,’ such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea, after which, if the party persists in pleading‘guilty,’ such plea shall be received and recorded, and the court shall proceed to render judgment and execution thereon, as if he had been found guilty by a jury. In all eases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense.” Rev. Stat. chap. 38, par. 484, sec. 4.
    The right of trial by jury is secured by the constitution upon a principle of public policy, and can not be waived. Cooley’s Const. Lim. 319, 410, note; Proffatt on Jury Trial, sec. 113.
    Mr. George Hunt, Attorney General, for the People:
    We contend that the court had jurisdiction to hear and determine the case without a jury.
    Circuit courts have original jurisdiction of all causes in law and equity. Const. 1870, art. 6, sec. 12.
    The jury is liot part of the court, except in cases where it is made so by statute. Section 6, division 14, of the Criminal Code, declares: “In all eases where the punishment shall be confinement in the penitentiary, if the case is tried by a jury, the jury shall say, in their verdict, for what time the defendant shall be confined,” etc. This clearly implies that the case may be tried by the court, and not by a jury. In such case, the punishment must be determined by the court.
    Section 9 of the same division declares: “When the accused pleads guilty, and in all other eases not otherwise provided for, the court shall fix the time of confinement, or the amount of the fine, or both, as the case may require.” .

      The clause, “all other cases not otherwise provided for,” refers to cases other than those in which the accused pleads guilty, and includes just such a case as this. The law here authorizes the court to fix the penalty—makes it a legal tribunal to fix the punishment. In the case at bar, the punishment was fixed by that legal tribunal, and not by an unauthorized tribunal created by the agreement of parties, as in the cases referred to in the brief of counsel for plaintiff in error.
    The sections of the constitution referred to by counsel for plaintiff in error guarantee rights. They do not purport to, nor do they, deprive a person of rights. Saying, “the right of trial by jury, as heretofore enjoyed, shall remain inviolate, ” does not mean that a person can not waive that right. It does not mean that it shall be a burden placed upon him whisk he can not free himself from, but rather a privilege which may be enjoyed by him, and of which he shall not be deprived against his will.
    The words, “shall remain inviolate,” mean that he shall not be deprived of his privilege by other persons, or by State authority. They do not mean that he may not waive the privilege. When a person is accused, he is to have the right of a trial by jury as heretofore enjoyed,—that is, the jury shall be selected from disinterested and unprejudiced citizens. It shall consist of twelve members. No law shall deprive a person accused of crime, of the right to a trial by such a jury, but there is no implication that the accused may not waive that, right for himself.
    That the right to a trial by a jury of twelve lawful men may be waived, see Brown v. State, 8 Blackf. 561; Daily v. State, 40 Ohio St. 57; Hill v. People, 16 Mich. 356; Dillingham v. People, 50 Pa. St. 280; League v. State, 36 Md. 257; People v. Lane, 55 Barb. 168; State v. Moody, 24 Mo. 560; State v. Larger, 45 id. 560; People v. Goodwin, 5 Wend. 251; Nomaque v. People, Breese, 145; Zarresseller v. People, 17 Ill. 101; People v. Scates, 3 Scam. 351; Darst v. People, 51 Ill. 286; Chase v. People, 40 id. 352; Perteet v. People, 70 id. 179.
   Mr. Justice Bailey

delivered the opinion of the Court :

Nancy Harris, the defendant, was indicted in the Criminal Court of Cook county, the indictment charging her, in the first count, with the crime of larceny, and in the second count, with receiving and aiding in concealing stolen property, knowing it to be stolen, with the intention of preventing the owner from again possessing the same. In both counts the value of the property stolen was alleged to be a sum exceeding $15. The defendant being arraigned pleaded not guilty, and thereupon, by agreement between the defendant, her counsel and the state’s attorney, a jury was waived, and the defendant was tried by the court without a jury. At such trial the court found her guilty as charged in the indictment, and sentenced her to imprisonment in the penitentiary for the term of one year. She now brings the record to this court and alleges that her conviction is illegal, for the reason that the Criminal Court had no power or authority to try her without a jury.

The question thus presented is, whether, in a prosecution for a felony, where a plea of not guilty is entered, the right to a jury trial can be waived, so as to confer upon the court the jurisdiction to try, convict and sentence the defendant without the intervention of a jury. It must be admitted that, if the power to try an indictment for a felony without a jury exists, such power is not given by the express terms of either the Constitution or statutes. Article 2 of the Constitution, known as the Bill of Bights, contains the following:

Sec. 2. “No person shall be deprived of life, liberty or property, without due process of law.
Sec. 5. “The right of trial by jury as heretofore enjoyed shall remain inviolate.
Sec. 9. “In all criminal prosecutions, the accused shall have a right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”

Division 13 of the Criminal Code contains the following provisions:

Sec. 8. “All trials for criminal offenses shall he conducted according to the course of the common law, except when this act points out a different mode, etc.
Sec. 11. “Juries in all criminal cases shall be the judges of the law and of the fact.”

There can be no question that, at common law, the only recognized tribunal for the trial of the guilt of the accused under an indictment for felony and a plea of not guilty, was a jury of twelve men. 4 Black. Com. 349; 1 Chitty’s Crim. Law, 505; 2 Hale’s Pleas of the Crown, 161; Bacon’s Abridg. tit. Juries, A.; 2 Bennett & Heard’s Lead. Cas. 327. This right of trial by jury in all capital eases—and at common law a century and a half ago all felonies were capital—was justly regarded as the great safe-guard of personal liberty. Says Mr. Blackstone: “The founders of the English law have, with excellent forecast, contrived that no man should be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion.” 4 Black. Com. 349. The trial of an indictment for a felony by a judge without a jury was a proceeding wholly unknown to the common law. The fundamental principle of the system in its relation to such trials was, that all questions of fact should be determined by the jury, questions of law only being reserved for the court.

Not only have we, in general terms, adopted the common law as a system, hut by the express provisions of our Constitution and statutes the mode of trial in criminal cases known to that system is specifically adopted and preserved. By the clauses of the Constitution above cited, the common law right to a trial by jury in criminal cases is guaranteed and declared to be inviolable, and the statute requires that, except as therein provided, all trials for criminal offenses shall be conducted according to the course of the common law. It would thus seem that the power to conduct criminal trials in any other mode than that which prevailed at common law is necessarily excluded.

Á jury of twelve men being the only legally constituted tribunal for the trial of an indictment for a felony, it necessarily follows that the court or judge is not such tribunal, and that in the absence of a jury, he has by law no jurisdiction. There is no law which authorizes him to sit as a substitute for a jury and perform their functions in such cases, and if he attempts, to do so, his act must be regarded as nugatory. Especially must this be true where the jury are not only the judges of the facts as at common law, but are also the judges of the law as provided by our statute.

But it is said that the right to a trial by a jury is a right which the defendant may waive. This may be admitted, since every plea of guilty is, in legal effect, a waiver of the right to-a trial by the legally constituted tribunal. But while a defendant may waive his right to a jury trial, he can not by such, waiver confer jurisdiction to try him upon a tribunal which, has no such jurisdiction by law. Jurisdiction of the subject, matter must always be derived from the law and not from the-consent of the parties, but in the present ease, jurisdiction is. sought to be based, not upon any law conferring it, but upon the defendant’s consent and agreement to waive a jury and submit her cause to the court for trial. “It is a maxim in the law that consent can never confer jurisdiction; by which is meant that the consent of the parties can not empower a court to act upon subjects which are not submitted to its determination and judgment by the law. The law creates courts, and upon considerations of general public policy defines and limits their jurisdiction; and this can neither be enlarged nor. restricted by the act of the parties.” Cooley’s Const. Lim. 398.

It is said, however, that the Constitution and statutes confer upon the Criminal Court of Cook county general jurisdiction of all criminal cases arising in Cook county. That is true, but the court, when properly constituted for the trial of criminal cases, and especially for the trial of felonies, consists not merely of a judge, but also of a clerk, a sheriff, a state’s attorney and a jury. For the trial of felonies the judge alone is not the court. The judicial functions brought into exercise in such trials are parceled out between him and the jury, and so long as there is no law authorizing it, the functions to be exercised by the jury might just as well be transferred, by agreement of the parties, to the clerk or sheriff as to the judge.

The views we have expressed are fully supported by the authorities. Thus, in State v. Lockwood, 43 Wis. 403, a defendant to a criminal information waived a jury and submitted his cause to the court for trial, and was tried by the court and convicted. On appeal to the Supreme Court it was held that the proceeding was a mis-trial, and that there had been no conviction within the meaning of the statute. In the opinion the court say: “A plea of not guilty to an information or indictment for crime, whether felony or misdemeanor, puts the accused upon the country, and can be tried by a jury only. The rule is universal as to felonies; not quite so as to misdemeanors. But the current of authority appears to apply it to both classes of crime;' and this court holds that to be safer and better alike in principle and practice. The right of trial by jury, upon information or indictment for crime, is secured by the Constitution, and upon a principle of public policy, and it can not be waived.” In Williams et al. v. State, 12 Ohio St. 622, the defendants were indicted for a felony, and having entered a plea of not guilty, they waived a jury and consented to a trial by the court, and were tried and convicted. The conviction was reversed on writ of error, the Supreme Court holding that it was not in the power of the accused to waive ,a trial by jury and by consent submit to have the facts found by the court, so as to authorize a legal judgment and sentence upon such finding.

The question has most 'frequently arisen where a defendant to a criminal prosecution has waived a trial by a full panel, and has consented to be tried by a smaller number of jurors. In all the States where the question has arisen in that form, with a very few exceptions, it has been held that a defendant has no power to waive a trial by'a full panel of twelve men, the reasoning upon which such decisions are based being equally applicable to cases where an attempt is made to dispense with a jury altogether. The doctrine of the decisions of that class is summed up by Judge Cooley as follows: “A petit jury is a body of twelve men, who are sworn to try the facts of a case, as they are presented in the evidence placed before them. Any less than this number of twelve would not be a common law jury, and not such a jury as the Constitution guarantees to ■accused parties, when a less number is not allowed in express terms; and the necessity of a full panel could not be waived— at least in case of felony—even by consent. The infirmity in the ease of a trial by a jury of less than twelve, by consent, would be that the tribunal would be one unknown to the law, created by mere voluntary act of the parties; and it would in effect be an attempt to submit to a species of arbitration the ■question whether the accused has been guilty of an offense against the State.” Cooley’s Const. Lim. 319.

In Cancemi v. The People, 18 N. Y. 128, the court, while conceding that the defendant in a criminal case may, by consent, affect the conduct of the case in various particulars, lays down the rule that “the substantial constitution of the legal tribunal and the fundamental mode of its proceeding are not within the power of the partiesand, “when issue is joined upon an indictment, the trial must be by the tribunal and in the mode which the constitution and laws provide, without any essential change. The public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant.” Among the numerous other cases where a similar doctrine has been laid down, the following may be cited: Work v. The State, 2 Ohio St. 297; State v. Mansfield, 41 Mo. 470; State v. Davis, 66 id. 684; Neals v. State, 10 id. 499; Brown v. State, 8 Blackf. 561; Allen v. State, 54 Ind. 461; Commonwealth v. Shaw, 1 Pittsburg, 492; Hill v. People, 16 Mich. 351.

In the trial of Lord Dacres for treason in the reign of Henry VIII, the question was- presented whether the prisoner might waive a trial by his peers and be tried by the country, and all the judges of the King’s Bench agreed that he could not, for the statute of Magna Charta was in the negative and the prosecution was at the instance of the King. The same was again resolved on the arraignment of Lord Dudley in the seventh year of the reign of Charles I, and the reason assigned was, that the mode of trial was not so properly a privilege of the nobility, as a part of the indispensable law of the land, like the trial of commoners by commoners, enacted or rather declared by Magna Charta. 2 Wooddesson’s Lectures, 346. See also 3 Inst. 30.

In People v. Lyons et al. 16 Chicago Legal News, 320, the late Judge McAllister, in a ease brought before him on habeas corpus, where the defendants had been tried and convicted of a felony by the court, a jury having been waived by their consent, delivered an able and satisfactory opinion holding that the conviction was void, and that the defendants were illegally imprisoned thereunder.

We are of the opinion then, both upon principle and authority, that the Criminal Court had no legal power to try the defendant without a jury, notwithstanding her consent and agreement in that behalf, and that the trial and conviction are therefore erroneous. The judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholeield

text:
    Samuel Fielden et al. v. The People of the State of Illinois.

      Filed at Ottawa

      May 16, 1889.

    1. Amendment of becobd—oí a subsequent term. Amendments of the record in affirmance of a judgment, when there is anything by which to amend, may, upon proper notice, be made at a term subsequent to that at which final judgment was rendered; but amendments not in affirmance, but in derogation of the judgment, are not allowed at a term subsequent to that at which final judgment is rendered.
    2. The record of this court affirming a judgment of conviction in a capital case, showed the presence of the prisoners in court on the rendition of the judgment of affirmance. At a subsequent term, the prisoners, by their counsel, entered a motion in this court to amend the record so as to omit the recital of the presence of the prisoners in court, which motion was overruled, as was also a motion for leave to amend the original motion, on the ground the proposed amendment was in derogation of the judgment, and came too late. But the court do not concede that the amendment, if made, could affect the validity of the judgment.
    3. Cbiminaii daw—presence of prisoner in court—in the trial cowrt, amd in the Supreme Court. The common law required, when any corporal punishment was to be inflicted on the defendant, that he should be personally present before the court at the time of pronouncing the sentence. The reasons for this were, that the defendant might be identified by the court as the real party adjudged guilty; that he might have a pardon to plead, or move in arrest of judgment; that he might have an opportunity to say why judgment should not be rendered; and that the example of being brought up for the animadversion of the court and the open denunciation of punishment, might tend to deter others from like offenses. None of these reasons can apply to the judgments of affirmance by this court in criminal cases.
    4. On writ of error to reverse a judgment in a capital case, the personal attendance of the defendant on the argument or at the decision of the court is not necessary to give such court jurisdiction. Such attendance is not required by the practice of this court or by any statute, but on the contrary, the statutes on the subject contemplate that such defendant will not be present in this court at any time.
    5. The provisions of section 9, article 2, of the State constitution, that “in all criminal prosecutions the accused shall have the right to appearand defend in person and by counsel, to demand the nature and cause of the accusation and to have a copy thereof, to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial,” etc., have no application to writs of error by which the accused seeks to have a judgment against him reversed. Such a proceeding is not a criminal prosecution.
    6. Same—fixing date of exe.cuiion by the Supreme Court—a ministerial act. The naming of the day by the Supreme Court, on judgment of affirmance, when the judgment of conviction is to be executed, is but the exercise of a ministerial power, which, at the common law, was sometimes exercised by the sheriff. In this State the power may be exercised by the Governor in case of a temporary reprieve.
    7. Bills oe exceptions—in u<hat courts allowable. At common law, a bill of exceptions could not be taken in case of a felony, and it is, by our statute, only authorized to be taken on trial at nisi prius ; and there is no authority, common law or statutory, authorizing the Supreme Court, or any member of it, to sign a bill of exceptions.
    Wbit of Fbrob to the Criminal Court of Cook county.
    At the March 'term, 1888, of this court, motion was made to this court, in the words following:
    “And now comes the plaintiff in error Samuel Fielden, and the plaintiff in error Michael Schwab, and the plaintiff in error Oscar W. Neebe, and each for himself says, that in a certain entry upon the records in the above entitled cause, purporting to have been entered on the 14th day of September, A. D. 1887, there is error, and the said entry on said record in said cause is false and untrue, the recital in saidTecord being as follows:
    “ ‘On this day came again the said parties, and the court having diligently examined and inspected, as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, for that it appears to the court now here, that neither in the record or proceedings aforesaid, nor in the rendition of the judgment aforesaid, is there anything erroneous, vicious or defective, and that that record is no error: Therefore it is considered by the court, that the judgment aforesaid be affirmed in all things, as to each and every of said plaintiffs in error, and stand in full force and effect, notwithstanding the said matters and things therein assigned for error. And it is further ordered by the court, that the 11th day of November, A. D. 1887, be and the same is fixed as the time when the sentence of death pronounced upon said plaintiffs in error, August Spies, Michael Schwab, Samuel Fielden, Albert E. Parsons, Adolph Fischer, George Engel and Louis Lingg, by the Criminal Court of Cook county, Illinois, shall be executed. And it is further ordered by the court, that the sheriff of Cook county, Illinois, be and he is hereby ordered and directed to carry into execution the sentence by the Criminal Court of Cook county, Illinois, of the defendants in the indictment, August Spies, Michael Schwab, Samuel Fielden, Albert E. Parsons, Adolph Fischer, George Engel and Louis Lingg, on Friday, the 11th day of November next, (November 11, A. D. 1887,) between the hours of ten o’clock in the forenoon and four o’clock in the afternoon of that day. And it is further considered by the court, that the said defendants in error recover of and from the said plaintiffs in error their costs by them in this behalf expended, and that they have execution therefor.’
    “Whereas, in truth and fact, as each plaintiff in error is ready to verify, he nor any of his co-plaintiffs in error was present in said court at the time of the rendering of the said judgment last above recited, either in person or by his attorneys, or either or any of them, nor were they, the plaintiffs in error, or either or any of them, or their counsel, or either or any of them, notified to be present, either in person or by attorneys,—and this each plaintiff in error is ready to verify; and the recital therein contained, ‘On this day came again the said parties,’ is wholly false and untrue, wherefore plaintiffs in error and your petitioners, and each of them, pray that the said record may be amended to conform with the truth and the fact, and that it may appear upon the face of the said record that at the time of the rendering of said judgment hereinbefore recited, neither the plaintiffs in error, or either or any of them, nor their attorneys, or any or either of them, were present in court, nor were they notified to be present. And this your petitioners will pray.
    Samuel Fielden,
    Michael Schwab,
    Oscar W. Neebe,
    By W. P. Black and M. Salomon,

      Their Attorneys.”

    The consideration of the motion was continued until the September term, 1888, when it was overruled. At the March term, 1889, the parties, by their attorneys, moved for leave to amend the original motion, which amendment consisted of certain affidavits in support of the fact set forth in the original motion as the ground thereof. This motion was also overruled. And thereafter, at the same term of court, a motion was made by the attorneys of the parties, to rehear the motion ; which, also, was then denied. And the parties then, by their attorneys, prayed that they have leave to prepare and tender a bill of exceptions, reciting the several motions so made and the rulings of this court thereon.
    Mr. W. P. Black, and Mr. M. Salomon, for the plaintiffs in error.
   Mr. Justice Scholeield

delivered the opinion of the Court:

The purpose of the proposed amendment of the record, as we learn from the argument of counsel, is to make it appear by the record that these plaintiffs in error have been deprived of an important constitutional right,—that of being present when this court rendered judgment affirming the judgment of the Criminal Court of Cook county,—they contending, that without their presence such judgment could not be pronounced. The effect which it is claimed will result from the proposed amendment, is, therefore, in derogation of the judgment,—as they contend, to nullify and destroy it. It must, hence, be manifest, that this motion ought to have been made at the term at which that judgment was rendered, for, not having been made then, it can avail nothing as to Spies, Parsons, Lingg, Engel and Fischer, and but for executive clemency, under which, and not any judgment of court, Fielden and Schwab are now in the penitentiary, they could not cause the motion to be made.

Under our practice, amendments of the record in affirmance of the judgment, when there is anything to amend by, may, upon notice, be made at a term subsequent to that at which final judgment is rendered; but amendments not in affirmance, but in derogation, of the judgment, are not allowed at a term subsequent to that at which final judgment is rendered. Planing Mill Co. v. Merchants' Nat. Bank, 97 Ill. 294. See, also, Powell on Appellate Proceedings, appendix, p. 387, note 1. The amendment in Phillips v. The People, 88 Ill. 161, was made before final judgment, and that in May v. The People, 92 Ill. 346, was also before final judgment, and it was, moreover, in affirmance of the judgment. The other cases cited by counsel are less pertinent, and therefore demand no comment.

This motion not having been made at the same term at which final judgment was rendered, nor until the case had passed beyond the power of this court to stay, by its order, the execution of the judgment, clearly comes too late.

But it must not be understood that we concede that the amendment, if made, could have affected the validity of the judgment. In our opinion, the amendment, if made, would be inconsequential, and would not affect, in the slightest degree, the rights of the parties under the judgment. The common law required, when any corporal punishment was to be inflicted on the defendant, that he should be personally present before the court at the time of pronouncing the sentence. 1 Ghitty’s Grim. Law, (5th Am. ed.) 693, *696. Seasons given for this are, that the defendant may be identified by the court as the real party adjudged to be punished, (Holt, 399); that the defendant may have a chance to plead a pardon, (3 More, 265); that he may have a pardon to plead or move in arrest of judgment, (King v. Speke, 3 Salk. 358); that he may have an opportunity to say what he can say why judgment should be not given against him, (2 Hale’s Pleas of the Crown, 401, 402); and that the example of the defendants, who have been guilty of misdemeanors of a gross and public kind, being brought up for the animadversion of the court and the open denunciation of punishment, may tend to deter others from the commission of similar offenses. 1 Chitty’s Crim. Law, (5th ed.) 693, *696. It is manifest that none of these can apply to this court, because, first, it acts and decides only upon the record made in the court below. It can therefore have nothing to do with the question of the identity of the party whom the sheriff shall have in his custody for punishment. Nor can it entertain a motion in arrest, or a plea of pardon. And since its opinion is prepared and written out and filed with the clerk without being read from the bench, there is, when judgment of affirmance is given, no animadversion and open denunciation of punishment which could benefit bystanders. If the present plaintiffs in error and their counsel had been actually present in court when the judgment of affirmance, here, was entered, the law allowed them to then say or do nothing which, by any possibility, could have benefited plaintiffs in error. They were, after judgment was entered, entitled only to move for a rehearing,—and this could only be done on printed petition; but thirty days were allowed in which to prepare it. (93 Ill. 11, rule 43.) Undoubtedly, if plaintiffs in error or their counsel had been actually present in court when the decision was announced, they would - then have known what the decision was; but that fact was equally "well made known to them by notice from the clerk,—in ample "time to avail of their right to file a petition for rehearing. And if, indeed, without any fault of theirs, more.time would have been needed within which to prepare the petition for rehearing, it was within the recognized practice of this court to have extended the time for that purpose beyond the thirty days. But no claim is here made-that plaintiffs in error were not infprmed of the decision in the case in time to file a petition for rehearing. They did not seek to avail of that right, but voluntarily waived it, and prosecuted a writ of error upon the record from the Supreme Court of the United States, and it was not until after that was decided adversely to them, that they discovered the claimed error in the record of which amendment is now sought.

In The People v. Clark, 1 Park. Crim. R. 360, the Supreme Court of New York, at general term, held, that on a writ of error brought to reverse a judgment in a capital case, the personal attendance of the defendant on the argument or at the decision in the appellate court is not necessary to give such court jurisdiction. And there was like ruling in Donnelly v. The State, 2 Dutch. 463. See, also, in principle, to like effect, Bales v. The State, 18 Mo. 318, and Commonwealth v. Costello, 121 Mass. 371.

We may add, moreover, it has not been the practice of this court, from its organization to the present time, to have the plaintiff in error in a criminal case actually present in court at the hearing and when final judgment is given; and it is clear, from the different provisions of the statute, that it not only does not provide for their presence, but it contemplates that they will not be present. Thus, under division 15 of our Criminal Code (Rev. Stat. 1874, p. 415,) it is provided, in section 6 : “When the court or judge is of opinion that the party obtaining such writ ought to be bailed until the determination of the writ, and he is at the time in custody, the said court or judge may make an order to admit- such prisoner to bail, upon his entering into a recognizance, * * * conditioned that the prisoner will appear”—not in this court, as would be required were his presence here indispensable, but—“at the next term of court in which his trial took place, and each subsequent term of said court, on the first days thereof, until the determination of such writ of error.” In section 7 it is provided : “If the prisoner is in custody .of the sheriff, he shall take the recognizance; if in custody of the warden of the penitentiary, he shall take the recognizance. In either ease, the recognizance shall be returned to the next term of the court in which the prisoner was sentenced.” And it is provided in section 11: “In case of the reversal of any judgment upon which any person has been committed to the penitentiary, and the granting of a new trial by the Supreme Court, it shall be the duty of the warden of the penitentiary, upon receiving a certified copy of such judgment of the Supreme Court, to deliver the person so committed, to the sheriff of the county where such new trial is to be had, ” etc. If such person were in court at the time the judgment is pronounced, and in custody, he would necessarily be in the custody of the sheriff of the county where this court is then being held; and the statute, instead of providing as thus quoted, would then have provided that the prisoner be delivered by the sheriff having him in custody, to the sheriff of the county where such new trial is to be had.

We are not unmindful that it is guaranteed by section 9 of article 2 of the constitution of this State, that “in all criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel.” But it is clear, from the connection of the clause, that this has reference to trials at nisi prius, only. The entire paragraph reads thus: “In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation and to have a copy thereof, to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county,”—all of which rights these plaintiffs in error have fully enjoyed on the trial in the Criminal Court resulting in their conviction. But they are not now defending against a prosecution. They are, themselves, prosecuting a suit to reverse the judgment by which they were convicted, and it is therefore impossible that these provisions can have any application to it. Tooke v. The State, Texas Ct. of App.

The mere naming of the day on which the sentence was to be executed was but the exercise of a ministerial power, which, at common law, was sometimes exercised by the sheriff, (1 Chitty’s Grim. Law, 5th Am. ed. p. 782, *783,) and is in this State exercised by the Governor in case of a temporary reprieve.

At common law, a bill of exceptions could not be taken in case of a felony, (1. Chitty’s Crim. Law, 5th Am. ed. p. 622, *623,) and it is by our statute only authorized to be taken on trials at nisi prius. There is, in our opinion, no authority, either common law or statutory, authorizing this court, or ány member of it, to sign a bill of exceptions.

The motions are overruled.

Motions overruled.


author: Mr. Chief Justice Craig

text:
    John B. Drake et al. v. Isaac C. Ogden.

      Filed at Ottawa

      May 16, 1889.

    1. Taxation and tax titles—levy of a tax by a village to pay town officers. An incorporated village has no power to levy a tax for the payment of the salaries of town officers, and if a village does levy snch tax ’it will be illegal, and will render the judgment in which such tax is included, and a tax sale thereunder, void.
    2. Same—notice of tax sale and time of redemption—its requisites, under the statute. The statute expressly requires the notice of a tax sale, which may be served or published, to state when the land was purchased, in whose name taxed, the description of the land, for what year taxed or specially assessed, and when the time of redemption will expire; and a. notice which omits any one of these requirements will be absolutely void.
    3. Same—notice—whether it may include more than one tract. It will not vitiate a notice of the tax purchase and when the redemption will expire, that more than one tract or lot may be included in such notice. The statute being silent on this subject, the purchaser or his assignee may exercise his own judgment on the subject.
    4. Same—service of notice—upon whom-^who is an “occupant." The placing of a few stacks of hay by a person on a tract of land actually occupied by another, and inclosing the stacks by boards to protect them from the rains, there being no agreement to pay rent, the owner and occupant, however, consenting to the placing of the stacks on the land, is not sufficient to put the owner of the hay in the actual possession or occupancy of the land or any part thereof, within the meaning of section 216 of chapter 120 of the Revised Statutes, entitled “Revenue,” and a purchaser of the land for taxes is not required to serve a notice of his purchase on such person stacking his hay on the premises.
    5. Same—tax sale of several tracts—in what order to he made. The statute requires the collector, on the day specified in the notice for the sale of lands for taxes, to offer for sale, separately and in consecutive order, each tract of land, or town or city lot, on which the taxes, special assessments, interest or costs have not been paid. The collector has no power to disregard this mandate of the statute, and if he does so, a sale can not be sustained.
    6. Where the collector,' however, in addition to the general list for taxes proper, has special lists in certain towns fpr delinquent special assessments, he may, in the case of a town where there are two lists, in his discretion, take up either list first and then sell under the other list, and this will not be to disregard the direction of the statute.
    7. Same—judgment for taxes—how far conclusive. Section 224 of the Revenue act does not make the judgment against the lands for taxes conclusive as an estoppel that the taxes included therein were legal taxes. It shuts out, all objections that might have been urged against the judgment, except in cases of payment, or when the land was not liable to the tax or assessment,—and this embraces illegal taxes.
    Appeal from the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding.
    Mr. H. S. McCabtney, for the appellants:
    Every person in the actual occupancy or possession of the premises was not served with a notice of the sale.

      If any part of the property was occupied, the occupant was ■entitled to the notice. Comstock v. Beardsley, 15 Wend. 348; Lucas v. McEnera, 19 Hun, 14.
    In Bush v. Davidson, 16 Wend. 550, the court decide that a mere tenant at sufferance must be notified. In Jackson v. Estey, 7 Wend. 151, it was held that an admission that the occupant has no title would not dispense with a notice. Ellsworth v. Low, 62 Iowa, 178, was a case where land was unfenced timber land, and no buildings upon it, but an employe had been cutting underbrush and felling timber. It was held that this was such a beneficial use as the nature of the lands permitted, and that it was a possession entitling the party to notice.
    The notice was bad in containing more than one tract or lot.
    The premises were sold out of their order. This will avoid the sale. Wisner v. Chamberlain, 117 Ill. 579.
    Section 224 of the Revenue act makes the tax deed prima facie evidence of certain things; and then provides that “any judgment for the sale of real estate for delinquent taxes rendered after the passage of this act, except as otherwise provided in this section, shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such judgment or decree, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered; and as to all such questions the judgment itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessments have been paid, or the real estate was not liable to the tax or assessment.”
    It is well-known law, that if any portion of the taxes for which judgment is rendered is illegal, the sale is void. Cooley on Taxation, 295-297; McLaughlin v. Thompson, 55 Ill. 249; Gage v. Pumpelly, 115 U. S. 454.

      Messrs. Wilson & Moore, for the appellee:
    The park commissioners were not in the possession of the lots. The law requires service of the notice only on actual occupants who may he found. Taylor v. Wright, 121 Ill. 455.
    It is unnecessary, on this point, to consider the number of persons to whom the notice was addressed, in view of the express decision of this court that the notice need not be addressed to any one. (Frew v. Taylor, 106 Ill. 159.) The address to individuals is surplusage, and does not affect the notice in any way whatever.
    The objection to the notice, then, is, that it contained two lots instead of one. The very extended argument of counsel on this point is perfectly immaterial, in view of the fact that the statute expressly authorizes more than one to be included in a single notice. Rev. Stat. chap. 120, see. 218.
    The statute requiring the lands to be sold in consecutive lists was not disregarded. The lands in each list were sold in their regular order.
    The statute of 1879 makes the judgment conclusive of every defense that might have been interposed to the application for judgment, except payment, and the exemption of the property from taxes.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

The premises in controversy were sold for taxes on the first day of September, 1882, and purchased by John Carne, Jr. A deed issued on the tax sale January 29, 1885, and the only question presented by the record is, whether the title to the premises passed by the sale and deed.

The objections urged against the tax title, in the argument, are as follows: First, that every person in actual occupancy or possession of the premises was not served with notice of sale; second, that the notice served and published is not a legal notice; third, that the premises in question were sold out of their order; fourth, that the judgment under which the premises were sold included illegal charges and costs.

Section 216 of the Revenue law provides, that before “any purchaser at a tax sale shall he entitled to a deed, he shall, among other things, serve or cause to be served a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such land, at least three months before the expiration of the time of redemption on such sale, in which notice he shall state when he purchased the land, in whose name taxed, the description of the land he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire.”

As a compliance with the above provision of the statute, before the deed issued, an affidavit of Edward W. Cross was filed with the county clerk, as follows: “That he is the agent of John Carne, Jr.; that as such agent, ‘deponent, on the 15th day of May, A. D. 1884, being at least three months before ilie expiration of the time of redemption on the sale mentioned in annexed notice, served a notice, of which the annexed notice is a true copy, on James Doyle, by handing the same to and leaving the same with James Doyle, personally, in said county of Cook. Deponent is acquainted with the land or lots mentioned in said notice, and the person so served was the only person in actual possession or occupancy of the land or lots on the 15th day of May, A. D. 1884.’ ” On the trial, appellants undertook to prove that the affidavit was not true,—that James Doyle was not the only person in the possession of the premises at the time the notice was served, but on the contrary, the South Park Commissioners were in possession of a part of the premises.

It appears, from the evidence, that in 1873 Daniel H. Horn, who represented Carrie C. Gibbons, gave permission to James Doyle to move on the premises. On December 8,1873, Doyle accepted a lease of the whole of lots 15 and 16 (the premises in question), by the terms of which he agreed to pay a rent of §4.50 per month, and under this lease he occupied the premises from that time until the notice was served on him in 1884.

It is not claimed that the South Park Commissioners had any lease of the premises, or any part thereof, or that the ■commissioners cultivated or occupied any part of the premises ; but it is said that the commissioners stacked hay on a portion of the premises, and thus were in the actual occupancy. We have examined the evidence bearing upon this question, and we do not regard it sufficient to establish actual possession or occupancy in the South Park Commissioners. In 1875 a Mr. Berry obtained the consent of Horn, and the tenant, Doyle, to stack hay on a portion of the premises. Hay-stacks were put up each year, and boards put round them to keep the hay from getting wet. These boards around the hay are spoken of in the argument as hay-hams, but there was no such thing as a hay-barn on the premises. No rent was paid for the privilege of stacking hay on the premises, or agreed to he paid. The commissioners did give Horn and Doyle, and perhaps Kelly, hay; hut there was no arrangement or agreement that it should be given or accepted as rent. Doyle and his wife looked after the hay, to keep out tramps and to guard against fire, and their cows, in return, ran around the stack and ate some hay, but the hay thus used was not rent, or so understood.

If the building of a stack or two of hay on a tract of land actually occupied by another, and enclosing the' stack with boards to protect it from the rains, is an act sufficient to place the owner of the hay in the actual possession or occupancy of the land, within the meaning of the statute, then it might be said that notice should have been served on the commissioners ; but we do not think such was the case. Doyle was residing on the premises'with his family, and was in the actual occupancy of the whole of both'lots, and the fact that the commissioners had hay on the premises gave them no possession or occupancy, within the meaning of the Revenue law. Suppose a farm of one hundred and sixty acres of land is sold for taxes, and when the purchaser goes upon the premises to serve notice on those in actual possession, he finds A residing on the land under a lease for the entire tract. When a notice is served on A the terms of the statute have been observed, and the purchaser concludes that he has done all that the law requires. But it turns out, on one part of the farm there is standing a crib of corn belonging to a tenant who occupied the premises the year before. On another part of the farm is a bin of wheat belonging to a former tenant. On another part is a stack of hay purchased by some person residing in the neighborhood. Are all these persons actual occupants of the premises, and entitled to notice ? We think not. To so hold would render the statute absurd; and yet, if notice was required to be given the South Park Commissioners, it would also be required in the cases supposed.

As has been heretofore said, the first part of section 216 of the Bevenue law requires the purchaser at a tax sale to serve a notice on every person in actual possession or occupancy of the land, and also on the person in whose name the land was taxed. The last part of the section provides, that if no person is in the actual possession of the land or lot which has been sold for taxes, and the person in whose name the same was taxed can not be found in the county, then such purchaser shall publish such notice in some newspaper printed in such county, which notice shall be inserted three times, etc. As a compliance with this portion of the statute, a notice was published, and it is objected that the notice is invalid, because two tracts of land which had been sold, and separate certificates issued for each tract, were included in the same notice.

The statute, in express terms, requires the notice which may be served or published to state when the land was purchased, in whose name taxed, the description of the land, for what year taxed, and when the time of redemption will expire. If a notice omitted any one of these requirements, it would be absolutely void. But whether one or more tracts of land may be incorporated into the notice, the statute is silent. The statute does not prohibit the purchaser from inserting two or more tracts in one notice, and in the absence of a prohibition, and in view of the fact that the statute is silent in reference to what the notice may contain in this regard, we perceive nothing which will forbid the purchaser from exercising his own judgment on the subject. Upon an examination of section 218, a clear recognition of the right to insert more than one tract in the notice will be found. That section relates to the fee which shall be charged by the publisher of the newspaper for the publication of the notice, and in the last clause it is declared: “The fee for such publication shall not exceed one dollar for each tract or lot contained in such notice.” If the legislature had intended, by the enactment of section 216, that a purchaser should not incorporate in his notice more than one tract of land, why was the language just quoted used? Moreover, the insertion of more than one tract in a notice can not mislead those who were entitled to redeem, nor could it injure any one, and hence we do not hesitate to place the construction on the statute that we do.

The next point relied upon is, that the premises in question were sold out of their order. The facts in regard to the manner in which the sale was conducted are contained in a stipulation found in the record, executed by the parties, from which we quote the following: “The tax judgment, sale, redemption and forfeiture record shows that at the time advertised for that purpose the tax sale began with ‘List No. 1,’ and the property described therein was sold in regular order until property in the town of Lake was reached. Before selling property in the town of Lake for general taxes, sale was made of property in the town of Lake under special assessments, after which the sale proceeded under ‘List No. 1/ selling property in the town of Lake for general taxes; after winch some intermediate towns were sold for general taxes, there being no special assessments therein; then, when Hyde Park was reached for general taxes, the sale for delinquent lands therein for special assessments was first made, and when this had been completed, continuing under ‘List No. 1,’ the sale of Hyde Park property for general taxes was made, including the lots in question.”

Section 201 of the Revenue law requires the collector, on the day specified in the notice for the sale of real estate for taxes, “to offer for sale, separately and in consecutive order, each tract of land or town or city lot in the said list, on which the taxes, special assessments, interest or costs have not been paid. ” The question presented is, whether this provision of the statute was violated in the sale of the premises here involved.

The collector has no power to disregard the language of the statute, which requires a sale of lands in consecutive order. If he does so, a sale could not be sustained. These lands were on a list delinquent for general taxes, and, as we understand the record, that entire list was sold in consecutive order. There was, however, in some of the towns,—for example, Towns of Lake and Hyde Park,—another list, embracing lands upon which judgment had been rendered for special assessments. When these towns were reached, in the progress of the sale, the collector, before selling the list for general taxes, sold the list delinquent for special assessments. We do not think this was a violation of the statute. The collector, in proceeding with the sale in the regular order in which the lands were advertised, when he reached a town where there were two lists, had the discretion to take up either list first which he saw proper. This he did in every town in Cook county, during the progress of the sale. When a town was reached where lands were delinquent for special assessments, that list was first sold, and then he proceeded with the list for general taxes.

The last point relied upon to defeat the sale is, that the tax judgment under which the premises were sold included illegal taxes. The territory of the village of Hyde Park is co-extensive with that of the town of Hyde Park, but the two organizations are in no manner connected with each other. An assessor and collector are elected each year in the town, but the village of Hyde Park has no such officers. It appears, however, from the evidence, that in the appropriation ordinance of 1881, adopted by the village, the sum of $900 was appropriated for town collector’s salary, and $1200 for town assessor’s salary. Of course, the village of Hyde Park had no authority to pay the salary of the town officers, and it had no right whatever to levy a tax to raise money for that purpose. The levy, so far as the $2100 is concerned, was illegal. The result was, nineteen cents were added to the taxes on one of the lots, and twenty-seven cents to the taxes on the other lot. These amounts formed a part of the judgment for taxes upon,which the premises were sold, and the question arises, whether such illegal taxes rendered the judgment and sale void. It is claimed by appellee that the defect relied upon is cured by section 224 of the Bevenue law, as amended in 1879. The section makes the tax deed prima facie evidence of certain things, and then provides that “any judgment for the sale of real estate for delinquent taxes, rendered after the passage of this act, except as otherwise provided in this section, shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such judgment or decree, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered; and as to all such questions the judgment itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessments have been paid, or the real estate was not liable to the tax or assessment.”

We do not concur in the view of appellee, but we think it is clear that this ease falls within the exception named in the last clause of the section. A portion of the taxes levied were illegal, and the land was not liable for such tax. The fact that a large proportion of the tax was legal does not change the result. The illegal portion of the tax rendered the judgment and sale void. McLaughlin v. Thompson, 55 Ill. 249, is a case in point. There it was held, that if any portion of the tax upon which a judgment is rendered was illegal, or if the judgment was for too large a sum, a sale and tax deed based upon such judgment would be void. The same doctrine is announced in Riverside Co. v. Howell, 113 Ill. 256. As the real estate was not liable for the tax as levied, the judgment did not prevent appellee from relying on the illegality of the tax.

We think .the court erred in holding the tax sale valid, and for this error the judgment will be reversed as to lots 15 and 16, block 2, Tearby’s subdivision (the property herein involved), and the cause will be remanded.

Judgment reversed.