author: Mr. Justice Scholfield

text:
    The Commissioners of Highways v. Thomas Harrison.

      Filed at Mt. Vernon January 22, 1884.

    1. Highway—as to the width of a public road—by whom to be determined, and how ascertained. Under the laws in force in 1853, the county court, upon the return to it of the viewers’ report, with a plat showing courses and distances, was required to fix the width of a public road in the order establishing the same, and enter the same of record. The statute did not of itself fix the width of the road. It was simply directory, that the court should determine that matter. But a failure to fix the width of a road by that court did not render the order establishing the road a nullity. It might still he sustained as a road of the width that it was actually traveled and worked under such order.
    2. Under authority in the county court to relocate a public road, there is no power to establish the road on the same identical route, and define its width; and the court can not, after the rights of the public have been fixed as to the width of a road, make a new order increasing its width, without first taking the necessary steps to condemn the additional ground sought to be taken.
    3. Section 64, article 17, of the Township Organization law of 1861, though it might have legalized a road laid out by the county court, by making the order laying it out evidence of the regularity of all the proceedings in its establishment, did not determine the width of such road, but left that as it was before its passage.
    4. Where the county court, in its order establishing a public road, failed to fix the width of such road, and it appeared it was opened, traveled and worked upon only to the width ef forty feet for many years, when the commissioners of highways threatened and were preparing to open the road through complainant’s premises four rods wide: Held, that the opening of such road beyond the width of forty feet was properly enjoined on bill in equity.
    Writ op Error to the Circuit Court of Clay county; the Hon. C. S. Conger, Judge, presiding.
    Mr. E. G. CocKRELii, for the plaintiffs in error;
    If the county court in 1853 obtained jurisdiction of this road by petition, etc., to open and work the same, there seems to be no reason why tbe court could not enter an order at any time, supplying its own records. (Laws 1861, p. 257, sec. 64.) How far does this statute legalize roads ? Does the question of a main leading road require a judicial finding in a proceeding to establish the same, or can it be shown as any other fact in proceedings like this, and the statutory width allowed? Harlan v. Harriston, 6 Cow. 189.
    Every presumption will be indulged as to the regularity of the proceedings to lay out the road. Nealy v. Brown, 1 Gilm. 10; Dumoss v. Francis, 15 Ill. 543; Henline v. People, 81 id. 269; Galbraith v. Lettiech, 73 id. 209; Frizell v. Rogers, 82 id. 109. See, also, Morgan v. Green, 17 Ill. 395.
    Work and repairs by the authorities are prima facie evidence that the road was legally established. Eyman v. People, 1 Gilm. 4; Illinois Central R. R. Co. v. Benton, 69 Ill. 174.
    The object of the recent survey was to enable the commissioners to locate the limits of the road already established. Gentleman v. Soule, 32 Ill. 271; Owens v. Crossett, 105 id. 354.
    Mr. Rueus Cope, for the defendant in error:
    The court in its order failed to fix any width, as required by statute. Until after the order of the court made on report of the viewers, the road is not established. (Gross’ Stat. p. 673, sec. 57; Linblom v. Ramsay, 75 Ill. 246.) But if the effect of these proceedings is to establish a road at all, it would be a road forty feet wide—the minimum limit fixed by statute. Pearce v. Town of Gilmer, 54 Ill. 25.
    It is claimed that the width of the road was fixed by an order made five years after. If there was already an established road, the court had no jurisdiction to change it, except on petition and notice. The evidence shows conclusively that there was no road by prescription. The line of travel became fixed as the road became fenced on both sides, and at the point in question less than twenty years, ago. There are many valuable hedge fences, all made on the supposition that the road is a forty-foot road. These must not be swept away by indulging in presumptions.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is a controversy with reference to the width of a certain highway. The complainant in the court below virtually concedes the existence of the highway in his bill, but claims it,is only of the width of forty feet, and prays that the defendants below, who are commissioners of highways, be enjoined from removing obstructions beyond that width. The defendants, by their answer and cross-bill, claim the highway was originally laid out sixty-six feet in width, but that subsequently, on proceedings to relocate it, it was reduced to the width of sixty feet. The court below, on the hearing, found and decreed in accordance with the allegations and prayer of complainant’s bill.

The petition for the highway was directed to the county court in 1853, and such proceedings as were had thereon were had in that year. Viewers were appointed, who surveyed, staked and platted a highway, without, however, designating any width, and reported the same to the court, and the court received the same and ordered it to be recorded.

The question is raised, first, under the statute then in force was it necessary for the viewers to report the width of the highway, and for the court to designate that width in an order for the laying out of the highway ? and second, if necessary, what is the effect of its omission upon a highway laid out and, used as such ? The statute then in force was the act approved March 3, 1845, entitled “Roads,” as amended at various times before 1853. (2 Purple’s Stat. 1038, et seq.) The 18th section of that act requires viewers, in case of application for a new road, to locate and establish the road, “causing the same to be surveyed, designating its course through prairies and improved land by fixing stakes in the ground, or by plowing two furrows, at the distance apart of the full width of the road, * * * and make report thereof to the next county commissioners’ court.” And the 33d section of the same act is as follows: “All roads shall be surveyed, and a plat, with the courses and distances thereof, returned with the report of the viewers to the commissioners’ court, which shall be recorded and filed. The commissioners’ court, on the return of the report and plat, shall determine and establish on record the width of the road, making the main leading roads four rods wide, and none less than thirty feet.” This language' is too plain to admit of construction. It is the duty of the court to determine and establish on record the width of the road. It is directed to make the main leading roads four rods wide. The language is not that all main leading roads are thereby declared to be four rods wide, but, simply, that' the court shall make them so. The language is directory to the court alone, and the question whether a road is a main leading road, or not, is one addressed to the court, and which it must decide before making its order. Necessarily, therefore, it could not be the subject of investigation elsewhere, unless it might be on appeal to some supervisory tribunal. It could not be inquired into in a collateral proceeding like the present. But we have held this omission to fix the width of the road does not render an order establishing it an absolute nullity, and that it may be sustained, notwithstanding the omission, of the width that it was actually traveled and worked under such an order. Pearce v. Town of Gilmer, 54 Ill. 25.

But counsel insist the omission here was cured by an order made by'the county court in 1858 to relocate the road-sixty feet in width. We know of no authority for the making of that order. There was then authority for relocating and altering roads, (1 Gross’ Stat. 1869, sec. 61, chap. 90, title “Roads, ”) and there was also authority for laying out new roads—hut this was neither.

Counsel, however, make the point that the court having jurisdiction, could, at any subsequent period, however remote, make an order to. correct the omission and fix the width of the road. The answer to this is obvious. . The road as ordered to be laid out, if there was an order that may be held to have had that effect, became a public road of the width it was opened, worked, and used. The rights of adj acent land owners became fixed by that opening, working and using. To enlarge the width of the road at a subsequent period, would be to again 'take so much .of their property for public use, which could only be done in some authorized mode of condemning private property for public use, which it is not claimed was here pursued.

Finally, counsel invokes the aid of section 64, article 17, of the Township law of 1861. (Public Laws of 1861, page 257.) Assuming that section legalizes this road as' a public highway, it does not enlarge the order laying it out, or give it a prescribed width, but simply makes the order laying it out evidence of the regularity of all the proceedings in laying it out, leaving its width to be as it may have been previously fixed. We can not say the court erred in holding, under the evidence, that the road was only laid out, worked and used of the width of forty feet.

The decree below awarded execution against the defendants, and the error thereupon assigned is confessed. The decree will be amended by striking out the order awarding execution, and then affirmed.

Decree affirmed.

Mr. Justice Walker: I am unable to concur in this opinion.


source: Caselaw Access Project

author: Mr. Justice Mulkey Sheldon, Ch. J., and Cbaig, J.,

license: Public Domain

text:
    Thomas Hanifan v. Henry M. Needles.

      Filed at Mt. Vernon January 22, 1884.

    1. Administration of estates—administrator de bonis non—of his powers, generally. It is a rule of tbe common law that the powers and the duties of an administrator de bonis non are limited to the administration of such property belonging to the decedent’s estate as has not already been administered upon by the former executor or administrator.
    2. Same—u'hat is an administering on property. The conversion of the property of an estate into money by the executor or administrator, is an administering upon such property, within the meaning of the foregoing rule.
    3. Same—when administrator de bonis non may sue his predecessor. An administrator de bonis non, appointed to fill a vacancy caused by the removal of an executor or administrator, may maintain any appropriate action or proceeding against such removed executor or administrator for any waste, mismanagement or breach of duty in respect to the estate during the administration of the latter, but not so where the vacancy was caused by death. In such case the heirs, devisees or creditors alone can maintain the action.
    4. Same—revocation of letters—power of the county court—and of the proper citation for that purpose. Under section 30, chapter 3, of the Revised Statutes, relating to the administration of estates, the county court has no power or jurisdiction to revoke the letters of an executor or administrator until he is first cited to appear and show cause0 why they should not be revoked.
    5. On a citation to an executor, requiring him to appear on the first day of the next term of the county court “and present his account of said estate for settlement, ” in which there is no intimation that he is charged with waste or mismanagement, etc., the county court has no jurisdiction to revoke his letters testamentary.
    6. On a citation, under section 113, of chapter 3, of the Revised Statutes, to an executor, to appear and settle his accounts, the county court has no power to remove him in any case. The power of removal is not incident to the proceeding under such a citation. On refusal to make settlement the next step is an attachment for a contempt of court, and when brought before the court for contempt, if he still refuses, then only is the court authorized to remove him under that section.
    7. The record of an attempted removal of an executor by the county court, after entitling the case, was as follows: “And now, on the first Monday of the term, it appearing to the court that J. S., the executor, was duly cited to appear this day in court and present his accounts of said estate for settlement, as said executor, and it further appearing to the court that said executor has failed to file an inventory and appraisement of said estate, and has failed to file settlements” and to account for moneys that came into his hands, and “has failed to appear this day and make settlement of his accounts, ” for the causes aforesaid he is hereby removed, etc: Held, that the court, from such recital, the citation being lost, had no jurisdiction of either the person or of the subject matter, for the purpose of revoking the letters testamentary, and that the order was a nullity.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Messrs. G. & G. A. Koerner, for the appellant:
    There is no dispute as to the jurisdiction of the county court of the person of the executor when the order of removal was made. The only question then is, was there jurisdiction of the subject matter?
    Section 51 of the statute relating to administration required the executor to file an inventory within three months after the date of his letters,, and section 111 required him to exhibit an account of his administration at the first term of" the county court after the expiration of one year from the date of his letters, and in like manner every twelve months thereafter, or sooner, if required, until the estate was fully settled.
    Power to remove executors and administrators is given by statute. Secs. 26, 30, 31, 32, 113, and others.
    The county court may revoke letters for the following causes, besides others not necessary now to consider: “When executors waste or mismanage the estate.” (Sec. 30.) “When he fails to make settlement after being cited.” Sec. 113.
    In this case the executor had filed no inventory, no appraisement, had failed to account for moneys in his hands belonging to the estate, and had failed to make an account when cited for that purpose. He was therefore guilty of “wasting and mismanaging” the estate, and, under section 30, his removal was proper.
    It is objected that the executor should have been attached before making the order of removal.-- The purpose of an attachment is to enable the court to enforce its orders more effectually, by fine or imprisonment. The executor can not complain that he is now severely dealt with, nor deny the validity of the entire action of the court because it did take this extreme measure. The manner of exercising the power of removal can not be questioned in this collateral proceeding. Young v. Lorrain, 11 Ill. 633.
    The county court having a general jurisdiction of unlimited extent when adjudicating upon matters incident to the administration of estates, as liberal intendment will be granted in-its favor as to a circuit court. Probst v. Meadows, 13 Ill. 169 ; Von Kettler v. Johnson, 57 id. 109 ; Moffit v. Moffit, 69 id. 641; Bostwick v. Skinner, 80 id. 148; People v. Cole, 84 id. 327.
    If it is possible for the court to have jurisdiction, it will be presumed the state of facts existed which authorized its action. Wallace v. Cox, 71 Ill. 548.
    If the jurisdiction of the court extended over that class of cases, it was the province of the court to determine for itself whether that particular case was one within its jurisdiction. Cox v. Thomas, 9 Gratt. 323.
    The case of Munroe v. People, 102 Ill. 406, cited below, has no points of similarity with this.
    Mr. M. W. Weib, Mr. W. G. Kueffnee, and Mr. Geobge Gbeen, for the appellee:
    The citation on which the order of removal is based was not in evidence. It must, therefore, be presumed to have been what the order says it was,—a citation to make settlement. On a citation to make settlement or-show cause for not paying a claim, an order of removal is a nullity, for want of jurisdiction. Munroe v. People, 102 Ill. 406.
    Section 30 of the Administration act cited, authorizes a removal when an executor wastes or mismanages an estate. A failure to file an inventory, appraisement, accounts, or to make settlements when cited, is not a “wasting or mismanaging” of the estate, and the case before the court did not charge these matters.
    Section 113 provides that if the executor shall fail to appear in obedience to a citation to make a settlement, “the court shall order an attachment, ” etc., and upon his failure “to make settlement under the order of the court, after having been so attached, he may be dealt with as for contempt, and shall be forthwith removed by the court.” Under this section, to authorize the removal a citation to make settlement must be issued, and failing to appear, an attachment must be issued. These are jurisdictional prerequisites.
    To render a grant of administration cle bonis non valid, the office must be vacant by death, resignation or removal of the preceding administrator, Rambo v. Wright, 32 Ala. 363; Mathews v. Martin, 37 id. 273; Munroe v. People, 102 Ill. 406; Creath v. Brent, 3 Dana, 129.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county disallowing a claim in favor of Thomas Hanifan, the appellant, as administrator cle bonis non of the estate of Mary Hayes, deceased, against Henry M. Needles, the appellee, as administrator cle bonis non of John Short, deceased, the proceeding having originally been commenced in the county court, from whence it was taken to the circuit court by appeal. Mary Hayes died testate some time in 1852, or thereabouts, and John Short became her executor, and the present suit is prosecuted against his estate for an alleged breach of duty as such executor.

In the view we take of this case it will not be necessary to make an extended statement of the facts, or to notice all the questions mooted by counsel in the argument. The evidence tends to show that John Short, as executor of Mary Hayes, administered certain property belonging to her estate, the proceeds of which were never accounted for by him in his lifetime, or by his legal representatives since his decease, and the present suit is brought to recover the proceeds of that property.

It is a wrell recognized rule of the common law that the powers and duties of an administrator de bonis non are limited to the administration of such effects belonging to the decedent’s estate as have not already been administered by the former executor or administrator, and that consequently he has no right or authority to call on the latter, or his legal representatives in case of his decease, to account to him for the proceeds of such estate, or for its mismanagement, or for any breach of duty respecting it. In such ease he or his legal representatives are liable directly to the heirs, devisees, next of kin and creditors, as their interests may be. (Rowan v. Kirkpatrick et al. 14 Ill. 8; Newhall v. Turney, id. 338.) That this is the settled law in the absence of any statutory provisions on the subject, is not denied, and that the sale, and conversion of the testatrix’ property into money by Short, the proceeds of which are now sought to be recovered, was an administering of such property, within the meaning of the rule, is equally clear. (Marsh v. The People, 15 Ill. 286; Beall v. New Mexico, 16 Wall. 541.) It therefore conclusively follows, this proceeding can not be maintained on common law grounds,—and this, indeed, is not seriously, if at all, questioned. Our statute, however, has provided the county court, in certain contingencies, may revoke the letters of an executor or administrator and remove him from office, and upon such revocation and removal appoint another in his stead; and by another provision of the statute it is expressly provided that where one is appointed to fill a vacancy caused by the removal of an executor or administrator, he may maintain any appropriate action or proceeding against such removed executor or administrator for any waste, mismanagement of, or breach of duty with respect to, the estate,, occurring during the latter’s administration. Sec. 39, chap. 3,. Rev. Stat. 1874.

Under the provisions of the statute just referred to, counsel for appellant claim that by an order of the county court of St.. Cl-air county, duly made and entered of record on the 21st day of May, 1877, the letters of John Short were revoked, and that he was removed from office, and that by a subsequent order of the court appellant was duly appointed in his stead. On the other hand, appellee insists the so-called order of revocation and removal was made by the county court without authority, and that the same, by reason thereof, was and is absolutely void, and that the said John Short continued to be the lawful and acting executor of the said Mary Hayes till the time of his death, which occurred on the 19th of June, 1877.

The order of the county court, relied on by appellant to establish the revocation of Short’s letters and his removal, is in these words:

“And now, on the first Monday of the term, it appearing to the court that John Short, the executor, was duly cited to appear this day in court and present his accounts of said estate for settlement as said executor; and it further appearing to the court that said executor has failed to file an inventory and appraisement of said estate, and he has failed to file settlements, and has failed to account for moneys that came into his hands as such executor, and has also failed to appear this day and make settlement of his accounts,—for the causes aforesaid the said executor is hereby removed, and required to account for and pay over to his successor all moneys, and deliver up all notes and papers in his hands and belonging to said estate, and if he fails to do so, he shall be considered in contempt of the court. ”

No writ, process, citation, or other order relating to such removal, appears in the record, and it follows if sufficient does not appear on the face of the order, as above set forth, to show the court had authority and jurisdiction to make such order, the trial court properly excluded it from the consideration of the jury, as it did. Counsel for appellant contend that sufficient appears on the face of the order to authorize the removal, either under section 30 or 113, of chapter 3, of the Revised Statutes of 1874. Section 30, so far as it is claimed to have any bearing on the question, is as follows: “The county court may revoke all letters testamentary or of administration, granted to persons who * * * waste or mismanage the estate, in all which cases the court shall summon the person charged to be in default, * * * as aforesaid, to show cause why such revocation should not be made. When revocation is made, the reason therefor shall be stated at large upon the record. ”

It is a fundamental principle that underlies our whole judicial fabric, that in all proceedings in courts of justice wherein it is sought to deprive the citizen of his property, or any right or privilege recognized by law, the party to be affected by them is entitled to reasonable notice of the time and place of hearing, and of the general nature or object of such proceedings. In- conformity with this general principle the county court has no power or jurisdiction to revoke the letters of an executor or administrator, under the above section, until he is first cited to appear and show cause why his letters shall not be revoked. The citation in this case did not contain the slightest intimation that there was any purpose on the part of the court, or any one interested in the estate, to remove him from office. It simply directed him to appear on the first day of the next term of the court “and present his accounts of said estate for settlement as said executor. ” Nor is there any intimation in the citation that he was charged with waste or mismanagement of the estate, as contemplated by the above section of the statute. Moreover, as the order does not set forth as the ground of removal any of the causes specified in that section, as required by it, it is evident the court was not proceeding under the 30fch section.

The 113th section is as follows: “The county courts of this State shall enforce the settlements of estates within the time prescribed by law, and upon the failure of an executor or administrator to make settlement at the next term of the court after the expiration of said time, the court shall order a citation to issue to the sheriff of the county where the executor or administrator resides or may be found, requiring said executor or administrator to appear .at the next term of the court and make settlement of the estate, or show cause why the same is not done; and if an executor or administrator fails to appear at the time'required by such citation, the court shall order an attachment requiring the sheriff of the county where the executor or administrator resides or may be found, to bring the body of said executor or administrator before the court, and upon the failure of an administrator or executor to make settlement under the order of the court after having been so attached, he may be dealt with as for contempt, and shall be forthwith removed by the court. ”

It is very apparent from the reading of this section that the failure of an administrator or executor to appear, in obedience to a citation, on a particular day, and settle his accounts with the estate, affords no warrant for his removal under the 113th section. That such is the case does not seem to be seriously questioned; but the argument is, that the removal, in the manner shown, was only error,—that the failure to comply with the statute did not affect the power or jurisdiction of the court to make the order, and hence the claim is, it is binding until reversed. The argument is unsound in this: The county court has no power, in any case, to remove an execiffcor or administrator upon a mere citation to appear and settle his accounts, as was the case here. The power of removal is not an incident to the proceeding under such a citation, and hence any attempted removal was unauthorized. The only legal consequences which attach to one’s failure to appear and make settlement of his accounts is, that he subjects himself to an attachment, as in. case of a contempt, and in such case it is made the duty of the court to order an attachment for his arrest, and when brought before the court, if he still neglects or refuses to make settlement of his accounts, the court is then required to deal with him as for a contempt, and to forthwith remove him. The removal is required not only in the interest of the estate, but it is doubtless also intended as a punishment for the contempt. To remove one before he is .attached and brought into court would be in effect to punish him for an alleged offence he has had no opportunity of answering, which is inconsistent with the genius and spirit of our free institutions, as well as violative of the organic law of the State.

It is a mistake to suppose that when one is served with process requiring him to appear in court to answer the complaining party in some particular proceeding or specified form of action, the court thereby acquires jurisdiction over his person for all purposes. Such a doctrine, in a limited degree, may have had some recognition under the ancient practice in England of permitting a plaintiff, when he had brought his adversary into court in a civil proceeding, to declare against him “by the by, ” as it was called, or in other words, to file a declaration against him for some other independent cause of action. But this practice has never obtained in this State, and has no sanction under our statute. The court’s jurisdiction in any case is only coextensive with the particular suit or proceeding in which the defendant has been summoned to appear. To hold otherwise would lead to the gravest consequences, and might result in the grossest abuses. Suppose one is sued in debt or assumpsit for a trifling, but just, money demand, to which there is no legitimate defence, and he therefore fails to appear in obedience to the summons, does the court thereby obtain jurisdiction over his person in any other suit that might happen to be pending or be subsequently brought against him? Would the court in such ease, without any additional notice or process, have power or jurisdiction to enter up a fine against him for some supposed contempt, or a judgment against him in some other suit in which he had not been served? Surely not; and yet, in principle, we see no substantial difference between the case in hand and the one suggested. We are clearly of opinion, under the circumstances shown, the county court had jurisdiction neither of the person nor the subject matter of inquiry in making the order of revocation and removal. The question of revoking Short’s letters and removing him had never been committed by law to the court for adjudication, and therefore the court had no right or power to deliberate upon or determine it. Nor, as we have already seen, had the defendant ever been notified, in any manner whatever, that steps had or would be taken for the revocation of his letters or his removal. We think it therefore plain, on principle and authority, the court exceeded its jurisdiction in making the order. The view here expressed is fully sustained by Munroe v. The People, use, etc. 102 Ill. 406, and the reasoning of the court in that case is conclusive of this.

To the suggestion that hardships and inconveniences might, ■and probably would, arise under the rule here laid down, it is sufficient to say that all persons claiming through judicial proceedings must know at their peril the court had power and jurisdiction to act. All persons so claiming must necessarily take this risk, and we are unable to see any difference in this respect between the case in hand and other cases where courts exceed their jurisdiction. Moreover, these inconveniences and hardships, while they occur occasionally, are seldom so serious as apprehended. Experience shows they are largely mitigated by the principles of estoppel, limitation daws, and other causes.

The judgment will be affirmed.

Judgment affirmed.

Sheldon, Ch. J., and Cbaig, J.,

dissenting:

It is well settled by the decisions of this court that the county court has general jurisdiction over estates, that it is a court of limited but not inferior jurisdiction, and that its adjudications can not be attacked collaterally, except' for want of jurisdiction. The order of removal of the executor in this case was a step in the progress of a proceeding to enforce the settlement of an estate. We consider that there was full jurisdiction of that proceeding.. There certainly was jurisdiction of the subject matter, and there was jurisdiction of the person by service of the citation to appear before the court and make settlement of the estate.

There being, then, jurisdiction of the proceeding, the omission by the court of any prescribed step in the progress of the proceeding would be only error in the exercise of jurisdiction, and could only be taken advantage of in a direct proceeding to reverse. Such an error, if error it was, we regard the neglect of the court to order an attachment before making the removal, and that the order of removal of the executor having been made in the course of a proceeding for the settlement of an estate, of which proceeding the court had jurisdiction, and in which such an order might be made, the order of removal should be taken to be a valid one, and not subject to be attacked in a collateral proceeding such as the present, although the order might have been an erroneous one.

We do not view the executor’s removal as punishment for his contempt, but as the measure of relief accorded to those interested in the estate, for the failure of the executor' to make settlement of it.


author: Mr. Chief Justice Sheldon

text:
    The Village of Louisville v. Noah Webster et al.

      Filed at Mt. Vernon January 22, 1884.

    1. Municipal corporation—fire limits—removal of wooden buildings—powers of municipal authorities. Under the general Incorporation law, conferring power-upon municipal authorities to prescribe fire limits, within which wooden buildings shall not be erected or placed or'repaired without permission, and to direct that all and any buildings within such limits, when damaged by fire to the extent of fifty per cent of the value, shall be torn down and removed, the authorities are not permitted, in the first instance, to tear down and remove such a building, or cause the same to be done, but they are empowered only to direct the tearing down and removal of such building, and the person to be so directed is the owner. This must first be done before the corporate authorities may take such stringent measures.
    2. Rule oe construction—as to powers of municipal corporations. A clause in a charter of a municipal corporation giving power to prescribe fire limits, and direct the removal of all buildings therein which may be damaged to a certain extent, should receive a strict construction in favor of the owners of such buildings.
    Appeal from the Circuit Court of Clay county; the Hon. Chauncey S. Conger, Judge, presiding.

      Mr. D. C. Hagle, and Mr. F. G. Cockrell, for the appellant :
    Cities and villages are invested with power to prescribe fire limits, and direct that all wooden buildings within those limits, when damaged by fire, decay or otherwise, to the extent of fifty per cent of their value, shall be torn down and removed. Hurd’s Stat. 1881, p. 219, sec. 62.
    A regulation of the use of property, or a prohibition of its repair when partially destroyed, is not a condemnation to the public use. Brady v. Northwestern Ins. Co. 11 Mich. 425.
    In support of the power of municipal corporations to iirevent the erection of wooden buildings within the fire limits, and to cause the removal of such as are damaged fifty per cent, and are unsafe, as nuisances, and as an exercise of police powers, counsel cited Harvey v. Dewoody, 18 Ark. 252; Ferguson v. City of Selma, 43 Ala. 398; Toledo, Wabash and Western Ry. Co. v. City of Jacksonville, 67 Ill. 46; Cooley on Const. Lim. (5th ed.) 471; Wadleigh v. Gilman et al. 3 Fairf. 403; King v. Davenport, 98 Ill. 305.
    Mr. Rufus Cope, for the appellees:
    The power to declare what shall be a nuisance is not without limit, nor can it be exercised arbitrarily. An old wooden building, notwithstanding* a depreciation in value of a certain per cent from age, may be as safe as it ever was, or as the newer structures beside it.
    The power to prohibit the erection or repair of wooden buildings within established fire limits is conceded, as a reasonable restriction on the use of property. It is not a taking of property for public use. The destruction of buildings, the erection of which the law has permitted and which usage has sanctioned, and which are recognized as property rightfully created, is a taking of property; and if by the public, for any public use or necessity, it can not be done without compensation, except in clear violation of the constitution.
   Mr. Chief Justice Sheldon

delivered tlie opinion of the Court:

This was a proceeding under section 3 of an ordinance of the village of Louisville, in which there was judgment for the defendant, and the plaintiff (the village)' appealed.

The first section of the ordinance establishes fire limits, which embrace that portion of the village immediately surrounding and cornering on the public square, and prohibits the erection or repair of any wooden building within the prescribed limits without permission. Section 2 is: f “When any building standing, fronting or cornering on the public square shall become damaged by fire, decay or otherwise, to the extent of fifty per cent of its value, it shall be deemed and is hereby declared to be a nuisance. ” Section 3 provides, that on complaint, under oath, to any justice of the peace, that any building as aforesaid has become damaged, as above named, to the extent of fifty per cent of its value, the justice shall issue a summons to the owner to appear and answer ; that on the trial the issue shall be, “Is the property damaged to the extent of fifty per cent of its value, ” and shall be tried by the justice or a jury, and if the justice shall find, or the verdict of the jury shall be, that the building is so damaged, the justice shall render judgment accordingly, and shall issue a writ to the village constable, commanding him to remove any person in possession, and to tear down and remove the building. Section 4 provides that the village constable, on receiving -the writ, shall remove the persons and advertise .the building for sale, etc., and the purchaser shall remove the building. The costs shall first be paid out of the proceeds, and the balance be paid to the owner. If there is no purchaser, «the constable shall remove the building.

On an appeal, the trial was by the court, without a jury, .and the following proposition of law, with two similar ones, was submitted by the plaintiff to be held as law:

“If the evidence shows the building in question stands on the south corner of the west row of wooden buildings on the public square in Louisville, and is damaged to the extent of fifty per cent of the value thereof, by fire, decay or otherwise, then the same is a nuisance, as declared in the ordinance offered in evidence in this ease.”

—Which propositions the court refused to hold as law, and the plaintiff excepted. The question presented upon the record is on the refusal of these propositions Of law.

The village is organized under the general law of the State for the incorporation of cities, towns and villages. That general law provides, that “the city council, and the president and trustees in villages, for the purpose of guarding against the calamities of fire, shall have power to prescribe the limits within which wooden buildings shall not be erected or placed or repaired without permission, and to direct that all and any buildings within the fire limits, when the same shall have been damaged by fire, decay or othenvise, to the extent of fifty per cent of the value, shall be torn down and removed, and to prescribe the manner of ascertaining such damage.” And that such authorities shall have power “to declare what shall be a nuisance, and to abate the same.” Rev. Stat. 1874, p. 221, sec. 62, subdiv. 62, 75.

Appellee takes a distinction between the erection and repair of a building and the removal or destruction of a building already erected, and while conceding the power in the village to prohibit the erection or repair of wooden buildings within fire limits which have been established, on the ground that that is a reasonable restriction upon the use of property, contends that the destruction of a building which had been rightfully erected is a taking of property, which can not be done by the public, under the constitution, except upon making compensation. However this may be, and in regard to which we express no opinion, we are disposed'to hold that this judgment may be sustained, for the reason that the ordinance under which it was had is defective in its not pursuing the power which had been granted to the village in the premises by the legislature. With respect to the future, there was grant from the legislature to the village authorities of the power to prevent the erection or repair of wooden buildings within the fire limits which might be established; and with respect to the present, as to buildings within the fire limits already erected, there was the grant of power, when the same should have experienced damage or decay to a certain extent, to direct that they should be torn down and removed. The power granted is not to tear down and remove the building, nor to cause the building to be torn down and removed, but to direct that it shall be torn down and removed. This implies, we think, that some person is to be directed to do this, and the person contemplated was, in our opinion, the owner of the building. This is the reasonable construction. The owner of the building being in no fault whatever, having erected his building before the establishment of fire limits, and not knowing that his building would be considered a nuisance until after there had been ascertainment, by judicial inquiry, of the extent to which it had been damaged, it would be quite rigorous, immediately upon the ascertaining of such damage, to proceed to make sale of or tear down and remove the building, without affording the owner an opportunity of preparation for the event by first notifying him to make the removal himself. (Cooley on Torts, 47.) The ordinance, after properly enough prescribing the manner of ascertaining the damage, provides that upon the damage being determined a writ shall thereupon issue to the village constable to remove any person in possession, and to tear down and remove the building. This seems to us to be more summary than warranted by the legislative grant of the power in this respect,—that it required, before this stringency of measure was resorted to, that the owner should first have been directed tó remove the building himself. The construction should be strict in favor of such owner.

The ordinance then being defective in the respect pointed out, the judgment was justified, and it is unnecessary to consider whether the propositions of law submitted were technically correct or not, as, the judgment being right, it should be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The Town of Golconda et al. v. John Field et al.

      Filed at Mt. Vernon January 22, 1884.

    1. Eebey—rights and duties of holder of franchise. A party, by accepting a ferry franchise, assumes an obligation to the public to provide necessary boats and machinery to transport persons and property, and is bound to provide safe and proper facilities for the prompt and speedy accommodation of the public, in consideration of which the law gives him the exclusive right to toll from all persons who may use his ferry. The privilege of establishing and operating a ferry is a franchise, in which the public have an interest.
    2. Same—remedy for infringing on right. The creation of a rival ferry is an invasion of a grant of a prior franchise. An invasion of such a right is a nuisance, and the- party aggrieved will have a remedy at law in an action on the case for the disturbance, and in modern practice resort may be had to a court of equity to stay the injurious interference.
    3. An exclusive ferry franchise was, in 1823, conferred on a party, who continued to use and enjoy the same until his death, in 1855, when the same descended to his heirs, who took possession of and continued to operate the ferry under such franchise. In 1859 the General Assembly, by a special act, authorized one of the heirs to establish a ferry at the same place, and operate the same for the term of twenty years. At the expiration of this term, in 1879, the county board issued a ferry license at the same place to a third person, who transferred the same to an incorporated town, to whom the tenant of the heirs attorned: Held, that the right to the franchise which the heirs inherited was not lost or surrendered by accepting or acting under the grant in 1859, and that a court of equity would enjoin any interference with their rights by those claiming under the license of the county board.

      4. Estoppel—/rom an admission—or accepting a title inferior to one already held. The very nature of an estoppel is, where an admission is intended to lead, and does lead, a man with whom a person is dealing into a line of conduct which must be prejudicial to his interest unless the party be cut off from the power of retraction.
    5. Parties already the owners in fee of a ferry franchise under a prior grant can not be held to lose any rights under the same by merely accepting a subsequent grant for a limited term. In such case they may claim and hold under both grants without prejudice to either one.
    Appeal from the Circuit Court of Pope county; the Hon. Daniel M. Browning, Judge, presiding.
    Messrs. Morris & Boyer, and Mr. James A. Bose, for the appellants:
    The legislative grant of a ferry franchise for twenty years was a contract between the State and John Field. (Cooley on Const. Lim. secs. 277, 278, and note.) If it was a contract it extinguished the former rights of appellees under a prior grant, and they are estopped from now claiming that they operated the ferry under the grant to their ancestor. If Elizabeth and John Henshaw procured the act of the legislature in conjunction with John Field, whereby title was conferred on him alone, they are estopped from asserting title. The former grant, with the consent of the grantee or his assignee, may be changed by the sovereign power, and John Field, standing in the same relation as his ancestor, was competent to obtain a new contract changing the old one. He did obtain such new contract, and it must speak for itself, and he is estopped from asserting anything dehors the contract thus obtained. That is the measure of' his rights, and it fixes the period at twenty years. Cooley on Const. Lim. 390, 394, 396; Mills v. County of St. Clair, 2 Gilm. 197.
    The legislature must have intended that Field’s right to the franchise should expire at the end of twenty years, and such intention would accord with sound public policy. Carroll v. City of East St. Louis, 67 Ill. 568.

      If his right ceased at the end of the twenty years, the county board was under no obligation to grant him a license on the ground he was the owner of the soil composing the ferry landing, as a franchise is not an incident to the ownership of land. Trustees of Schools v. Tatman, 13 Ill. 27.
    Field was a party to the proceeding before the county board, and resisted the grant of a license to Jahn, and had his remedy at law by removing the proceedings to the circuit court by certiorari. The same may be said as to the orders of the town. City of Ottawa v. Chicago and Rock Island R. R. Co. 25 Ill. 535.
    Mr. Wesley Sloan, for the appellees:
    No person can be deprived of his life, liberty or property except by the judicial department, where he is entitled to the right of trial by jury, and the forms, pleadings and practice of the courts. This ferry was established in 1823, and confirmed by the act of 1827, and has been continuously used ever since,—now more than fifty-six years. The county board has no power to issue license to any one to keep a ferry within one mile of any established ferry. (Rev. Stat. 1874, p. 530.) Hence the order granting such license to Jahn was void, as being in express violation of the law. Complainant might, by bringing forcible entry and detainer, regain his former position, but the void order, license and deed would still be outstanding. In chancery alone could he have a complete remedy.
    Messrs. Green & Gilbert, also, for the appellees:
    A ferry franchise is real estate. Dundy v. Chambers, 23 Ill. 369; Conway v. Taylor’s Exr. 2 Black, 632.
    The grant of such franchise is a contract between the State and the grantee of the franchise. Mills et al. v. St. Clair County et al. 2 Gilm. 197.

      Whenever the public good requires, or the exigencies of the State demand it, all the rights and privileges conferred may be resumed, upon adequate compensation- being, made therefor. Mills et al. v. St. Clair County et al. 2 Gilm. 197; Pipkin v. Wynus, 2 Dev. (N. C.) 402; Lippincott v. Alexander, 27 Iowa, 460; Bowman's Devisees v. Walker, 2 McLean, 376.
    Ferries being publici juris, the owner of the land adjoining the water course over which the ferry is proposed to be established is not thereby entitled to the ferry franchise, but the statute gives such owner the preference over others when a grant of the franchise is made, and a grant of a ferry franchise will.be presumed after twenty years’ possession and user of such franchise. Mills et al. v. County Commissioners, 2 Scam. 53.
    The State alone could insist upon a waiver or forfeiture of the ferry franchise. Trustees of Schools v. Tatman, 13 Ill. 27.
    The very nature of an estoppel is, when an admission is intended to lead, and does lead, a man with whom a party is dealing into a line of conduct which must be prejudicial to his interest unless the estopped party be cut off from the power of retraction. Hermann’s Law of Estoppel, 8.
   Mr. Justice Craig

delivered the opinion of the Court:

It appears from the bill of appellee, and the allegations of the bill are admitted to be true by the demurrer, that in the year 1823 Daniel Field was the owner in fee of a certain strip of land containing thirtyreight acres, lying between the town of Golconda, in Pope county, and the Ohio river. The tract of land ran southwardly from the mouth of Lusk creek, which is the northern boundary of the town. It also appears that Daniel Field was operating a ferry from his land at the mouth of Lusk creek across the Ohio river. At the September term, 1823, of the county commissioners’ court of Pope county, Daniel Field presented a petition to the court praying the commissioners to establish and confirm in him a ferry franchise across the Ohio river in front of the town of Golconda, and the commissioners, after due consideration, established a ferry across the Ohio river at the mouth of Lusk creek, and licensed the said Daniel Field to charge and collect certain sums of money as ferry rates. It also appears from the bill that by the act of the legislature of the State of Illinois, entitled “An act supplemental to an act entitled ‘an act to establish and regulate ferries, approved February 20, 1819,’ approved and in force February 12, 1827,” the said ferry, so established and confirmed to the said Daniel Field, was declared to be an established ferry, and gave to him, his heirs and assigns, full power and authority to demand and receive from passengers and other persons such rates of toll as should from time to time be established by the county commissioners’ court of said county. It also appears from the bill that Daniel Field departed this life on the 5th day of August, A. D. 1855, and from the time said ferry was established until the day of his death, (more than thirty-one years,) he, by himself, his agents and tenants, was in full possession of said ferry, its privileges and appurtenances, and operated the said ferry continuously and exclusively during the said thirty-one years and more, without let or hindrance, and said ferry, from the time of its establishment until the death of Daniel Field, was recognized by the county commissioners’ court as being the property of Daniel Field. It is also alleged that upon the death'of Daniel Field the title to the ferry passed to his heirs, and that appellees, by proper conveyances, became the owners thereof; that since the death of Daniel Field the ferry franchise has been in the exclusive possession and enjoyment of his heirs, without let or hindrance, first by all the heirs, and next by complainants, until the commencement of the grievances hereafter mentioned,—a period of more than twenty^three years,—thus making a period of more than fifty-five years since the establishment and confirmation of the ferry by the county commissioners’ court at the September term, A. D. 1823, to the commencement of the grievances herein complained of, during all which time the ferry has been in the exclusive and continuous use, occupation and enjoyment, without let or hindrance, of Daniel Field, during his lifetime, and of his heirs since his death, as aforesaid. It is also alleged that complainant John Field, on the 1st day of January, 1859, without any intention whatever to release or waive complainants’ already vested right and title in and to said ferry franchise, obtained, at the general session of the legislature of 1859, the passage of a special law authorizing John Field, his heirs and assigns, to establish and keep a ferry across the Ohio river between Golconda and the opposite Kentucky shore, for the term of 20 years. During the continuance of the term of twenty years, which expired February 24, A. D. 1879, complainants kept and operated said ferry, under their fee simple title, vested in them by descent and purchase, • as aforesaid, and also under said special act; but since the expiration of the twenty years therein mentioned, complainants kept and operated said ferry under their fee simple title acquired by descent and purchase, as aforesaid. It also appears from the bill that in 1879, after the expiration of the twenty years named in the charter, the county board of Pope county issued a license to-Frank Jahn, mayor of the town of Golconda, to operate a ferry across the Ohio river, between the town of Golconda and the opposite shore in the State of Kentucky;-that after obtaining said license, Frank Jahn, by deed of conveyance, sold and conveyed to the town of Golconda the said ferry right so granted to him, as aforesaid. It also appears from the bill that when Jahn obtained a license, and conveyed the same to the town, complainants were in the possession of the ferry, and operating the same by and through a tenant, named Berry; that the town of Golconda fraudulently induced the said Berry to attorn to' the said town, and thus ousted the complainants from the possession and use of their property. The bill contains other allegations, but it will not be necessary to notice them here.

In order to ascertain the rights of the complainants in this case, it will be necessary to determine,“first, the nature, character and extent of the privilege conferred ujion Daniel Field by the order of the county commissioners’ court entered at the September term, 1823, in connection with the acts of 1819 and 1827. Under the order and the statute it is clear that a ferry was established and a ferry franchise conferred upon Daniel Field,'his heirs and assigns. He assumed an obligation to the public to provide necessary boats and machinery to transport persons and property over the river. He was bound to provide safe and proper facilities for the prompt and speedy accommodation of the public. On the other hand, in consideration of the duty imposed upon him, the law which imposed that duty conferred upon him the right of exclusive toll to be charged all persons who used his ferry. The right or privilege thus conferred may be regarded as a franchise. Kent, in vol. 3, page 458, in speaking of this right, says: “The privilege of making a road or establishing a ferry, and taking tolls for the use of the same, is a franchise, and the public have an interest in the same, and the owners of the franchise are liable to answer in damages if they should refuse to transport an iúdividual, without any reasonable excuse, upon being paid or tendered the usual rate of fare.” The .same author also says: “An estate in such a franchise and an estate in land rest upon the same principle, being equally.grants of aright or privilege for an adequate consideration. ” The author also lays down the doctrine that if the creation of the franchise is not declared to be exclusive, such is implied from the grant, and an interference by creating a rival franchise would be a violation of the grant; that an invasion of a right of this character would be a nuisance, and the party aggrieved would have a remedy at law in an action on the case for the disturbance, and in modern practice resort might be had to a court of chancery to stay -the .injurious interference.

Here, under the allegations of the bill, if they are true, • (and they are admitted to be true by the demurrer,) a ferry franchise was conferred upon Daniel F'ieíd in 1823; that he at once entered into the possession and enjoyment of the right, and so continued for a period of thirty-one years, until his death, in 1855, when the right or privilege possessed by him descended to his heirs, who continued in the possession and enjoyment of the rights of their ancestor until they were dispossessed by defendants, in 1879. Was this right one which could be taken and destroyed by the defendants, or was it a property right still owned by complainants, which is entitled to protection in the courts ? The defendants, as we understand the argument, do not deny that complainants are entitled to relief if they are entitled to claim under Daniel Field, but they contend that all rights acquired by them from Daniel Field in and to the ferry have been surrendered or lost.

In 1859 (February 24) the General Assembly passed an act in which John Field,, his heirs and assigns, are authorized to establish and keep a ferry for the term of twenty years, across the Ohio river, between the town of Golconda, in the county of Pope, in the State of Illinois, and the opposite shore, in the State of Kentucky. The argument is, that John Field having recognized the act of 1859, and acted under it, he and the other complainants are estopped from claiming any rights other than those granted by that act of the legislature. The doctrine of estoppel is not applicable to a question of this character. In Hermann’s Law of Estoppel, page 8, the author says: “The very nature of an estoppel is, when an admission is intended to lead, and does lead, a man with whom a party is dealing into a line of conduct which must be prejudicial to his interest unless the estopped party be cut off from the power of retraction. ” There was no admission or line of conduct by the complainants which would enable the defendants in this ease to invoke the law of estoppel. The complainants owned a ferry franchise, which they had a right to enjoy and use until they should commit some act which might authorize the State to interfere and forfeit the franchise. While in the enjoyment of this right the act of 1859 was enacted by the legislature, which conferred a franchise for twenty years, but this act conferred no additional rights upon complainants. At the time the act was passed they had, under the law of the land, all that the act of 1859 professed to confer, and much more, and we are unable to perceive how it is that complainants lost all rights held by them under the grant to Daniel Field in 1823, and confirmed by the act of 1827, by merely accepting the provision of the act of 1859. Suppose a certain person is in the possession of a tract of land under a regular chain of title from the government. Another person holds a tax title on the land, which the owner in possession buys, and obtains a deed. Is the owner, when his title may be called in question, estopped from asserting title to the land from the government from the fact- that he purchased an outstanding tax title, and after the purchase occupied under such title in connection with the original title ? Surely not; and yet there is no substantial difference between the supposed case and the position of complainants. The complainants, when the act of 1859 was passed, were in the possession of the ferry franchise which had been conferred originally on Daniel Field, and descended to them. They had an undoubted right to hold and operate the ferry under the original grant. They did no act indicating an intention to abandon title to the ferry, but when the act of 1859 was passed they accepted its provisions, and held under it in connection with the original title. We do not think they waived any rights held under the original grant by accepting the provisions of the act of 1859, nor were they estopped from claiming under the original grant. If they thought the act of 1859 might strengthen their title to the ferry, we perceive no reason which would preclude them from accepting its provisions and at the same time retain the original title held by them when the act of 1859 was passed. This was no doubt the view of the circuit court, which we believe to be correct.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    Nicholas McCracken v. Cora Droit et al.

      Filed at Mt. Vernon January 22, 1884.

    1. Practice—waiver of error by not excepting at proper time. On bill for tbe partition of lands the commissioners made a report, showing the parts set off to tbe complainants and a part only of tbe lots assigned to tbe defendant, leaving a number of lots wholly undisposed of, which were intended for him. He made no exception to the report, and it was confirmed by the court: Held, that by failing to except to the report of the commissioners the defendant was concluded from afterwards objecting to the report and decree of confirmation, and by his silence had waived all objection to the report—even the mistake in omitting the lots intended for him.
    2. Error—favorable to party, no ground for a reversal by Mm. No party can have a judgment "or decree reversed for an error which does' him no injury or Wrong, or may not injure him. Thus, where commissioners appointed to make partition of lands omitted in their report several lots set apart to the defendant, which report was confirmed by the court, and at a subsequent term the complainants had the cause redocketed without notice to the defendant, and a supplemental report filed showing that the omission was from mistake, and showing an assignment of the omitted lots to the defendant, which report was, on the complainants’ motion, confirmed, it was held, that it was error to redocket the case, and file an additional or amended i report, without notice to the defendant, but as the error could not work any possible injury to the defendant, he could not obtain a reversal of the decree for such error, and that complainants were by such last report, and its confirmation on their motion, concluded from claiming any interest in the prop- . erty so assigned to the defendant.
    Writ of Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for the plaintiff in error:
    Butler, who appears upon the face of the bill to be part owner of some of the land sought to be partitioned, was an indispensable party to the suit. He had a substantial interest in the subject matter of the litigation. Atkins v. Billings, 72 Ill. 597; Hopkins v. Roseclare Lead Co. id. 373; Borders v. Murphy, 78 id. 81.
    This was especially requisite because land was the subject of the litigation. Smith v. Rotan, 44 Ill. 506.
    Want of proper parties goes to the foundation of the whole proceeding, (Hoare v. Harris, 11 Ill. 24,) and the objection may be taken on the hearing, in error or on appeal. Lynch v. Rotan, 39 Ill. 14.
    The decree in this ease ordered the commissioner to partition all the land, and it was clearly erroneous for the court to approve a report which failed to dispose of sixty acres, especially as no other disposition was made of the omitted land and no report with reference to the same offered. Nor was this error cured by a redocketing of the ease at the next term, without notice to the parties in interest, and the filing, and approving of a supplemental report by the commissioners. When they made their report at the February term, 1883, and the case went off the docket, they were no longer commissioners with any power to act in the case. They were functus officio. They had no powers in the premises. Titles to property might be endangered or divested, if this can be done without notice to the party to be affected by their acts.

      Messrs. Needles & Ncetling, and Messrs. .Wilderman & Hamill, for the defendants in error:
    A party can not, as a general rule, assign for error a decision in his favor. McQuoid v. The People, 3 Gilm. 76; Manchester v. McKee, 4 id. 518.
    A party .can only complain, in an appellate tribunal, of an error which affects his Own interests, and so can not complain that another, who makes no objection, was not properly brought into court. Short v. Raub, 81 Ill. 509; Stone v. Steele, 83 id. 422; Jacobs v. Turpin, id. 424; Stone v. Wood, 85 id. 603; Pierson v. Hendrix, 88 id. 34; Wright v. Bishop, id. 352; Jefferson v. Jefferson, 96 id. 551; Bowman v. Venice and Carondelet Ry. Co. 102 id. 466; Tibbs v. Allen, 27 id. 119.
    Suppose the decree, in so far as it disposes of Butler’s interest in lot 18, to be erroneous, it does not affect plaintiff in error, nor require a reversal as to the whole decree. McIntire v. Yates, 104 Ill. 503; Van Valkenburg v. Trustees, 66 id. 103.
    ' The proceeding, so far as the May term, 1883, went, was simply to put on paper what they had done in fact, but by mistake had omitted from their report, and was clearly within the powers of the court. Rev. Stat. 1874, chap. 37, sec. 32.
   Mr. Justice Walker

delivered the opinion of the Court:

The bill alleges that Robert McCracken died seized of lot 93, in Cahokia commons, and of an undivided third of lot 18, in Bracket’s subdivision, and of the undivided half of all the other lots and lands described in the bill; that on his death Cora Droit became entitled to her dower therein of one-third thereof, for and during her natural life, and Xavier and Nichplas, his children and heirs at law, inherited the fee simple to the interest which he had held in the lands; that Nicholas McCracken, Sr., owns the one undivided half of the lands so described in the bill. At the return term, Nicholas, Sr., entered his appearance, but did not answer the bill. He was defaulted, and the bill taken pro confesso, and commissioners were appointed to assign dower and make partition of the lands. The commissioners reported, to the same term, that they had assigned dower, specifying the lands allotted to Mrs. Droit, and had made partition of the lands, and specifying the tracts set off, severally, to Xavier and Nicholas, Jr., and to Nicholas, Sr. The report was confirmed, and the costs - were decreed among the parties. At the next May term the case was redocketed, without notice to Nicholas, Sr. The commissioners filed, with the consent of the court, a supplemental report, in -which they say that from inadvertence they had, in their former report, omitted to embrace in the list of lands assigned to Nicholas McCracken, Sr., lots 279, 282 and 291, in the third subdivision of Cahokia commons, and also lot 126, survey 87, lot 143, survey 72, and lot 159, survey 64; that they set these lots off to him in making partition, but by mistake they were not embraced in their former report. The commissioners asked to have their former report corrected. The report was filed, and confirmed by the court, and the cause went from the docket, and Nicholas McCracken, Sr., brings the record to this court on error, and asks a reversal.

It is urged as error that the court permitted the supplemental report to be filed at the ensuing term, after the final hearing of the case, and approved it, thereby changing the final decree of the former term without any notice to plaintiff in error. This action of the court was no doubt irregular, and was erroneous; but is plaintiff in error in a position to urge it as' a ground of reversal ? He was made a defendant to the bill, entered his appearance, the bill was taken as confessed, and the decree fixing the rights of the parties was rendered. The commissioners made their report, with the mistake in omitting a portion of the land partitioned to him. He filed •no exceptions to the report, and permitted it to be approved and confirmed. He was then in court, and having failed to except on the coming in of the report, he is concluded now from objecting. By failing to except he waived all objections to the report. He will not be permitted, when in court, to lie by and permit errors in the commissioners’ report to intervene, and then bring the record to this court and reverse the' decree confirming the report. He had his day in court when the decrees fixing the rights of the parties and confirming the report were rendered. By his silence he accepted the decision and allotment of the land to him. He had ample opportunity to have excepted and have the mistake corrected, but did not, and he is thereby precluded from going behind the report.

No error is urged against any portion of the proceedings before the filing of the first report, and although it contained a mistake, plaintiff in error waived that by not excepting. He, by it and its confirmation, acquired title in severalty to the lands allotted to him therein, and to the omitted lands by the report and decree of the May term, 1883. That portion of the decree must be affirmed, because if there was error he waived it by not excepting. When the last report was made, with the consent of the court and approved by the decree of the court, it had jurisdiction of the subject matter and the persons of complainants, and the report was filed, and the decree confirming it was on their motion. The title was vested in plaintiff in error by this latter report and decree, or if. not, defendants in error are precluded from claiming it against him or any person claiming in privity.

It is a rule of general application that no party can have a judgment or decree reversed unless it works him wrong, or it can be seen that it may injure him. An error that is harmless to a party is not ground of reversal by him. If that decree should be reversed and the cause remanded, the court, on proper notice to plaintiff in error, would be required to enter a decree in all respects similar to the last decree. In no view we have been able to take of the case can we see that he has been injured, nor is it claimed that he has been.

As to assigning one-third of lot 18, in Bracket’s subdivision, to Butler, who was not a party to the suit, but with his agreement or consent with the commissioners, he did not except when the first report was made, and he can not now be heard to object.

Perceiving no error requiring a reversal, the decree of the court below must be affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    The Trustees of Schools v. Lewis Potter et al.

      Filed at Mt. Vernon January 22, 1884.

    1. Appeals—;from Appellate Court—when judgment not final. Where the Appellate Court reverses the judgment of the circuit court for an error, in this, that one out of several issues of fact formed in the trial court was immaterial, and remanded the cause for further proceedings, without specific directions, no writ of error will lie from this court to review the judgment of the Appellate Court. In such case the judgment of the Appellate Court is not a final one, nor is it such that no further proceedings can be had in the trial court except to carry into effect the mandate of the Appellate Court.
    2. Same—former decision. The case of Johnson v. Humboldt Ins. Co. 91 111’. 92, is not to be regarded as authority on this question, for, although the appeal was entertained, the question of the right to do so was not raised by counsel or passed upon by this court.
    Writ oe Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Mr. Henry S. Baker, and Messrs. Irwin & Springer, for the plaintiffs in error.
    Messrs. Metcalf & Bradshaw, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

■ This action was brought in the Madison circuit court, by Trustees of Schools of town 4 north, range 6 west, against Lewis Potter, principal, and Henry C. Gerke and Philip Yolk, sureties on the official bond of the former as late treasurer of said township. The bond sued on bears date the 9th of October, 1876, but it appears Potter had been treasurer of the township for twelve years next preceding that time, and had from time to time, as required by law, executed other bonds as treasurer, and, as is usually the case where a delinquent officer is his own successor, the defence consisted mainly in an effort to show that the delinquencies complained of occurred under some former bond or bonds. The breaches of the condition of the bond assigned in the declaration are in substance as follows:

“First—The failure of Potter to deliver, on demand, to his successor in office, the moneys, books, papers, etc., in his hands as treasurer of the township.
“Second—That during the time Lewis Potter held the said office, under said bond, there came to his hands as such treasurer, moneys, books, papers and securities pertaining to said office, amounting in value to a large sum of money, to-wit, the sum of $10,000, which said Potter unlawfully converted to his own use, and failed, neglected and refused, on demand, according to law, to pay over to his successor in office.
“ Third—That for a long space of time prior to the execution and delivery of said bond, to-wit, for the space of twelve " years, the said Lewis Potter lawfully held the office of treasurer of said township, and exercised the functions thereof, and during said space of time there came to his hands as such treasurer, moneys, books, papers and securities pertaining to his said office, of great value, to-wit, of the value of $10,000, which moneys, books, papers and securities passed into and remained and continued in the hands of said Lewis Potter during the time he held and exercised the said office, under and by virtue of the said writing obligatory, yet the said Potter failed and refused, after demand made by his successor in office according to law, to deliver said last mentioned moneys, books, papers and securities to his said successor in office, contrary to law and the conditions of said bond.
“Fourth—That for a long space of time prior to the execution and delivery of said bond, to-wit, for twelve years prior thereto, said Potter continuously held the office of treasurer of said township, and exercised the functions thereof, and during said time there came to his hands, by virtue of said office, divers large sums of money, * * * amounting in the aggregate to a very large sum, to-wit, the sum of $10,000, which said Potter, during said time, unlawfully and wrongfully converted to his own use, and -which it became his duty by law, and the conditions of said writing obligatory, to demand, receive and replace in the treasury of said township, during the time he continued to hold said office and exercise the functions thereof, under and by virtue of the said writing obligatory, yet said Potter failed, neglected and refused to demand, receive and replace said several sums of money, or any of them, or any part thereof, in the treasury of said township during his said last mentioned term of office as such treasurer, contrary to law and bond.
“Fifth—That during the time said Potter held said office, by virtue of said bond, divers orders were drawn in conformity to law, by the various boards of school directors of the several school districts of said township, against funds collected and in his hands, and subject to appropriation by such school directors, which said Potter failed and refused to pay upon presentation to him, and demand of payment of the same, and against which interest subsequently accrued, and was paid out of the funds of said districts in the hands of the treasurer of said township, contrary to the conditions of said bond, to a large amount, to-wit, the sum of $2000.”

The defendants filed pleas of non est factum, payment, and performance, upon which issues of fact were made up. The cause was tried on its merits, resulting in a judgment in favor of plaintiffs for $4068.32. On appeal by defendants the Appellate Court for the Fourth District reversed this judgment and awarded a repleader, on the ground the judgment was obtained on the fourth breach in the declaration, which, in the opinion of that court, presented an immaterial issue, and remanded the cause for further proceedings, without specific directions. By the present writ of error the trustees of schools seek to reverse the latter judgment. Upon the cause being brought here, the defendants in error entered a motion to dismiss the writ of error, on the ground the facts above stated do not bring the case within the provisions of the statute which authorize a writ of error from this to the Appellate Court, and at the request of counsel this motion was reserved for the final hearing.

This being an action ex contractu, and the amount in controversy over $1000, it is clear the case does not come within either of the limitations upon the right to maintain the writ found in the 8th section of the Appellate Court act, relating to the character of the action and the amount in controversy. The question then is, do the facts before us bring the judgment of the Appellate Court within either of the three classes of cases founded upon the character of judgment, contained in the 90th section of the Practice act ? If so, the motion should be overruled, otherwise it should prevail. By that section the writ lies from this to the Appellate Court,—first, where the judgment of the latter court is “that the order, judgment or decree of the court.below be affirmed;” second, where a final judgment or decree is rendered in the Appellate Court; and third, where the judgment, order or decree of the Appellate- Court is such “that no further proceedings can be had in the court below, except to carry into effect the mandate of the Appellate Court. ” It is evident the case in hand, if properly here, must belong to one or the other of these three classes, for the statute has provided for no others.

As the judgment of the court below was not affirmed, it is hardly necessary to say the case does not come within the first class. That is conceded. And to our minds it is equally clear the case does not come within the second class, unless we are prepared to say that the mere reversing and remanding of a cause without directions, except such as might be implied from the general principles of law laid down by the reviewing court as applicable to the case, is, within the meaning of the statute, the rendering of a final judgment in the Appellate Court, and to do this would, in effect, be holding that an appeal or writ of error lies in every case where it is reversed and remanded for some alleged error of law which counsel may suggest, materially, or even fatally, affects the right of action or of defence, as the ease may be. To hold this would be to render meaningless and nugatory the very words of the statute, which seem so clear and plain that no room is left for construction. This we are not prepared to do. We are equally clear the case does not come within the third class. To say that the reversing of a cause for a supposed error of law, and remanding it for further proceedings, without any specific directions to the trial court, is the rendering of such a judgment “that no further proceedings can be had in the court below except' to carry into effect the mandate of the Appellate Court, ” is simply a legal solecism. What mandate of the Appellate ‘Court is the circuit court required in this case to carry into effect ? None whatever. When the cause again comes before the circuit court both parties will be permitted to amend and resettle their pleadings, if they desire, and shall be so advised. After the pleadings are settled the plaintiff will be entitled to a trial de novo, just as though no trial had ever taken place. The case upon such second trial may, if deemed best, and the facts proven will permit, be tried upon a totally different theory, either as to the law or facts, as both parties will be entitled to introduce new testimony, if they have it, and desire to do so. It is doubtless true, when the ease comes up for trial again, if there has been no material change in the proofs the circuit court will make its rulings conform to the law as laid down by the Appellate Court. But that will be so in any case where that court reverses for some error of law, and remands without specific directions. In such cases, if the unsuccessful party can not so present his case as to obviate the objections interposed by the Appellate Court, and is of opinion the views of that court are wrong, as matter of law, he must proceed as he did before, taking exceptions when the court rules against him, until there is a final determination of the ease. This is the course, and the only course, to be pursued, whereby he can place himself in a position to have the case reviewed in this court.

Counsel for iflaintiffs in error, however, insist that this view of the case is in conflict with the rule laid down in International Bank et al. v. Jenkins et al. 104 Ill. 143. We do not concur in this conclusion. The facts of that case, as therein stated, are as follows: “The International Bank of Chicago obtained a decree in a proceeding to foreclose a mortgage against Samuel J. Walker in the circuit'court of Cook county, on the 25th day of April, .1878. Walker was afterwards adjudged a bankrupt, and Jenkins appointed assignee. On the 21st of April, 1881, the assignee, Jenkins, sued out a writ of error from the Appellate Court to reverse the decree of foreclosure which had been rendered in the circuit court in 1878. The International Bank appeared in the Appellate Court and filed a plea of the United States Statute of Limitations in bar of the suit, under section 5057 of the Bankrupt act, ” which requires all actions, either -for'or against the assignee, to be brought within two years from the time the cause of action accrues. To this plea the assignee filed a demurrer, which the court sustained, and entered a judgment reversing the decree of the circuit court and remanding the cause. The bank thereupon brought the record here by writ of error, and it was held by this court in that case,—first, that the writ of error from this to the Appellate Court was properly sued out; second, that the judgment of the Appellate Court in sustaining a demurrer to the plea was erroneous, and for that reason the same was reversed. It is manifest that case is essentially unlike the one now under consideration. Upon examination of the record in this case we find eight errors assigned on the Appellate Court record, every one of which relates directly or indirectly to the proceedings in the trial court. On the circuit court record ten errors are assigned, all of which present questions of law, except the seventh and tenth, reviewable in this court, if the case were properly here, and all founded upon the rulings of the trial court. In addition to this the record shows that four out of the five issues joined, as originally made up, are good inlaw, and not at all affected by the decision of the Appellate Court, and will stand ready for trial whenever the case is placed again upon the circuit court docket.

But counsel say, in effect, they do not rely on these issues,—that they rely alone upon the issue formed upon the fourth breach in the declaration. If this be so, why did they not, when the evidence was all in, dismiss as to the other breaches, and thus show by the record what they now claim merely by way of argument? Had this been done, there would be at least some consistency in the argument. But this course was not pursued, and the statement of counsel in this respect is not in accord with the record. By the record plaintiffs in error are asserting the right to recover under all five of the breaches, and their right to do so, if they can sustain them by proofs, is not questioned by the Appellate Court, except as to the fourth breach. It is hardly necessary to say that when counsel state one thing and the record asserts another, in acting judicially upon the issue thus made we must be governed by the record.

Looking, then, to the record as it is, we are unable to perceive upon what process of reasoning the conclusion is reached that the judgment of the Appellate Court is a final judgment in that court, or that it is such a judgment that nothing remains for the circuit court to do except to carry into effect the mandate of the Appellate Court, particularly as the record does not, as we have already seen, disclose a mandate from that court of any kind. For what is the case remanded ? Manifestly, for a new trial on the merits upon the four good issues already formed, and such other issues as may be formed by reason of a repleader having been awarded.

But let us now see wherein the International Bank case, supra, differs from the one in hand. While the object of the writ of error in that case was the same as the appeal in this,—namely, to reverse the judgment of the trial court for certain errors assigned upon the record,—yet the defendant in error in the former case, by filing the plea of the Statute of Limitations, in legal effect admitted upon the record the existence of the errors complained of in the proceedings of the trial court. So that ended all controversy so far as the errors in question were concerned; and if that had been the only effect of the plea, a judgment of reversal would have followed as a matter of course. But such was not the case. The plea, while it, in legal effect, confessed the errors assigned, also set up an independent collateral fact that had no connection whatever with or relation to the proceedings in the trial court, as a reason or answer in law why the plaintiffs in error had no right to disturb the decree .of the trial court,, notwithstanding the confessed errors in the proceedings. The indejDendent and collateral fact thus set up by the plea was, that the proceeding instituted for the purpose of reversing the decree had not been commenced within two years from the date of the decree,—in other words, the plea set up the United States Statute of Limitations of two years. As the fact alleged in the plea was manifestly true, the defendants had no alternative but to concede-it, and insist that the failure to sue out the writ of error within the two years did not, as matter of law, preclude them from suing it out after-wards, and this they did by filing a demurrer to the plea, which brought the parties to a single issue of law, namely, whether the assignee in bankruptcy had any legal right to sue out the writ of error after the lapse of two years from the date of the decree,—and this was the only and final question determined by the judgment in that case. As this question was one that was not in any manner involved in the case sought to be reversed—one that not only never had been, but that never could be, involved in it, let the question be decided as it might,—it followed, as a matter of course, the decision of it would be, and was, a final determination of it, so far ■ as the Appellate Court was concerned,—or, in other words, it was, in the language of the statute, a final judgment in the Appellate Court; hence it was properly held a writ of error would lie from this to the Appellate Court, to review the judgment. Whether the limitation of two years presented a bar to the writ of error in that ease, presented the only question decided by the Appellate Court in it, and hence the only one upon which the judgment was, or could have been, rendered. The judgment, therefore, as just stated, was, in the language of the statute, a final judgment of the Appellate Court. The present case is, in every substantial particular, wholly unlike that case, and consequently can not be controlled by it. Every question discussed in the opinion of the Appellate Court in this case, besides others involved in the issues but not discussed, will, upon another trial, in all probability, have to be passed upon by the trial court, and be again reviewed by the Appellate Court, and such is almost universally the case where there is a reversal and remanding of a cause for a trial ele novo, as was the case here.

The case of Johnson v. Humboldt Ins. Co. 91 Ill. 92, is also referred to as sustaining the position of plaintiffs in error. It is sufficient to say, as to -that case, that while it is true the appeal was entertained, yet no question as to the right to do so was either raised by counsel or passed upon by the court, and it is therefore clear it can not be regarded as an authority upon the question before us. The reference made to it in the International Bank case, supra, was merely in arguendo, and it was there distinctly stated that the right to entertain the appeal “was not raised by counsel or discussed in the opinion” in the Johnson case, and it is hardly necessary to say, that before any case can be regarded as an authority upon any question, the question must not only arise upon the record, but it must be passed upon . and determined by the court. In short, none of the authorities cited by plaintiffs in error sustain the position in question, and we feel no hesitancy in holding, for the reasons already stated, the writ of error in this ease was improvidently sued out, and will therefore have to be dismissed, which is accordingly done.

Writ of error dismissed.


text:
    The People ex rel. Frederick Ropiequet v. Owners of Lands.
    ' Filed at Mt. Vernon January 22, 1884.

      Ebbob—•party estopped to assign for error a judgment by consent. Where the county court renders judgment, by consent of all parties, against lands and lots for State and county taxes alone, and sustains the objections made to the other taxes by like consent, the People will be precluded from assigning error to reverse such judgment.

      Appeal from the County Court of St. Clan county; the Hon. Frederick H. Pieter, Judge, presiding.
    Mr. R. A. Halbert, and Mr. B. H. Canby, for the appellant.
    Mr. John B. Bowman, for the appellees.
   Mr. Justice Walker

delivered the opinion of the Court:

The collector of taxes of St. Clair county applied to the county court for an order for the sale of lands, town lots, etc., for delinquent taxes. The notice was to the May term, 1882. The taxes were delinquent for the year 1881 and previous years. There was no objection filed to the notice, or other proceeding in assessing the taxes, except it was claimed that there was no authority for levying any but the State and county taxes. On a hearing of the objection, the collector introduced the notice and proof of publication, corrected list, etc.

It is urged that no evidence was introduced to sustain the objection. That is true; but it appears that the collector consented to the judgment. The bill of exceptions recites that the parties' were present by their attorneys; that the court found the objector was a corporation of this State and the owner of the property, “and by the consent of all parties the court then and there considered, ordered and adjudged that there are due and delinquent upon” the property State and county taxes, the amount for which judgment was rendered, “and that the objections made as to all the remainder of the sums claimed to be due upon and from the said several half lots, respectively, and described in said delinquent list, be and they are sustained.” Upon this agreement of the parties the court could not have done otherwise than render judgment alone for State and county taxes. The agreement precluded any other judgment, and the People are estopped from assigning error to reverse the judgment rendered by consent of the parties, and it must be affirmed.

Judgment affirmed.