text:
    George Ball v. Lenora Schaffer.

      Filed at Ottawa November 17, 1884.

    1. Appeal—from Appellate Court—when further proceedings are to be had in the trial court. No appeal lies from an order of the Appellate Court reversing a decree in part and. affirming in part, unless the judgment of that 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.
    2. So where a decree in a suit for dower, finding the yearly value of the dower interest, and fixing the damages to be paid for the failure to give dower, from the time of the commencement of the suit, was affirmed as to the first part and reversed as to' the damages, and remanded to the court below, with directions to have the damages assessed by a jury, it was held, that no appeal would lie from such judgment of the Appellate Court, as a new trial was to be had in the court below in respect to the damages for a refusal to assign dower.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Marshall county; the Hon. N. M. Laws, Judge, presiding.
    Mr. C. C. Jones, and Messrs. Barnes & Muir, for the appellant.
    Mr. Fred S. Potter, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition in the circuit court of Marshall county, brought by Lenora Schaffer, widow of George Schaffer, for an assignment of dower in a certain lot in Henry. George Schaffer died seized of the premises, and appellant, who was made defendant to the petition, .acquired title under an administrator’s sale. A decree was rendered in the circuit court that petitioner was entitled to dower in the premises, and commissioners were appointed to assign dower. The commissioners reported that the premises were not susceptible of division without manifest prejudice to the parties in interest. Upon the confirmation of the report, a jury was impaneled to inquire of the yearly value of the dower in the premises. The jury returned a verdict that the one-third net annual rental value of the premises was $128.50. Upon this verdict the court rendered a decree that appellant pay petitioner $128.50 on the 12th day of June, 1884, and yearly thereafter, and that the amounts should remain a lien on the premises. The decree then proceeds as follows: “And the court doth further find, that the one-third of the net annual rent value of said premises has been at the rate of $128.50 per annum since the 21st day of September, A. D. 1882; that the original bill of said Lenora Schaffer was filed on said day in this court, and no payment has been made to her in lieu of her dower and thirds in said rents since said bill was filed, and that she is entitled to recover of the said George Ball, as damages for the detention of her dower, from the time of the filing of her bill up to the time of the entry of this decree, the sum of $93.60.” This sum appellant was decreed to pay as damages for the detention of the dower. For the purpose of reversing the decree rendered, the defendant appealed to the Appellate Court, where the decree of the circuit court was in all things affirmed, except that portion wherein appellant was decreed to pay $93.60 for and during that time which elapsed between the filing of the petition and the rendition of the decree. As to the payment of this amount the decree was reversed, and the cause remanded, with directions to call a jury and assess the damages from the time of filing the bill to the time when the decree was rendered. From this decision of the Appellate Court appellant appealed to this court, and assigned various errors. The appellee, however, contends that an appeal does not lie from the order of the Appellate Court, for the reason that.no final judgment was rendered in that court.

The 90th section of the Practice act allows, appeals from the Appellate Court in certain specified cases: Where the judgment of the Appellate Court he that the order, judgment or decree of the court below be affirmed, or if final judgment or decree be Rendered therein in the Appellate Court, or if the judgment, order or decree of the Appellate Court be such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court. If appellant has the right to appeal, such right arises under and by virtue of this section of the statute.

The question presented, then, is, whether appellant’s case falls within the terms of the statute. Was the judgment of the circuit court affirmed? Was a final judgment rendered in the case by the Appellate Court, or was the judgment of the Appellate Court such that no further proceedings can be had in the circuit court except to carry into effect the mandate of the Appellate Court ? It is manifest upon an inspection of the judgment of the Appellate Court, that it does not fall within either of the three provisions of the statute. It is true, that as to the annual amount decreed to be paid, the decree was affirmed; but as respects the $93.60 the decree was reversed, and the cause remanded for a new trial before a jury. The statute nowhere provides for an appeal where a decree is affirmed in part and reversed in part, and the cause remanded for another trial. In International Bank v. Jenkins, 109 Ill. 219, in considering this section of the statute, we held that to give an appeal or writ of error from or to the circuit court, there must be a final disposition of the whole case as to all the parties. We also held that no appeal lies from an order of thé Appellate Court reversing a decree in part and affirming in part, when the judgment of the Appellate Court is not such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court. The' Appellate Court remanded the cause, and it stands now for a new trial in the circuit court of Marshall county, for the determination of the amount that shall ultimately be allowed the petitioner from the time of the filing of the petition to the entry of the decree.

The appeal will,be dismissed.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Paul Huston et al. v. Charles W. Clark et al.

      Filed at Springfield September 27, 1884.

    1. Drainage haw—constitutional limitation as to legislative power to authorise drainage districts, etc. By section 31, article 4, of the constitution, adopted at the November election, 1878, the legislature is given power “to provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct, * * * by special assessments upon property benefited thereby.” In this there is no limitation upon the legislature as to the mode of forming such districts, or as to the agencies or instrumentalities to be used in their creation.
    2. Same—act of 1879—of its constitutionality—by whom the taxing power is permitted to be exercised. The Drainage act of May 29, 1879, is not unconstitutional, as an attempt to confer the power of taxation upon the judiciary. Under that act the commissioners or corporate authorities are required to find the amount necessary to be raised by special assessment, to consummate the proposed work, and the jury called have nothing to do with that. They can apportion, only, that sum among the several tracts of land in the district, as they may be severally benefited, and in no case can the sum assessed against any one tract exceed the benefits it will receive.
    3. Same—as to the mode of selecting the “corporate authorities” relating to drainage districts. Nor is the act obnoxious to the constitutional objection that it fails to provide for the election of the corporate authorities of a district, when formed. The constitutional provision relating to drainage districts does not require that the corporate authorities who exercise the power of levying special assessments on lands benefited, shall be elected by the people of the districts. The special amendment of the constitution, adopted in 1878, so far as it invades the former limitations of the constitution, must prevail, and such limitations are not applicable to special assessments for drainage purposes.

      4. Same—practice—time to object to omission of names of land owners in petition. The failure to state the names of land owners in a petition for the formation of a drainage district, can not be taken advantage of by a land owner on appeal from a judgment confirming a special assessment on his land, especially when he has appeared and contested the application at every step, without making any objection on that account, so as to afford an opportunity to obviate it by amendment.
    5. Same—confirmation of commissioners’ report—presumption in its favor. Where the county court confirms the report of the commissioners appointed, which finds that no lands will be injured, and the evidence heard is not preserved in the record, this court will presume that there was evidence justifying the county court in approving the report. It does not necessarily follow that a drain through land will be a damage to it.
    6. Same—of the assessment roll—how made up. While section 18 of the Drainage act directs the jury to “assess the damages and benefits against each tract separately, in the proportion in which such tract of land will be damaged or benefited, ” it does not require that the amount of each shall be entered in the assessment roll; and section 17 directs, only, that the balance or excess of the one over the other be carried forward to a column prepared for that purpose.
    7. Where the column in an assessment roll for damages contains no entry of damages, it will be presumed that the column headed “benefits, ” shows only benefits in excess of damages, even if damages were shown.
    8. Same—amending assessment roll after separation of jury. Where an assessment roll describes two tracts of land as in a wrong township, which the record shows to have been a mere clerical error, there is no error in the court allowing the same to be corrected by the foreman of the jury after separation, as the foreman, alone, is authorized by the statute to certify to the assessment.
    9. Constitutional law—making organization of a corporation depend on a finding of facts by a court. The mere fact that the county court is required to find certain essential facts preliminary to the formation of a corporate body, does not make that body, when formed, the creature of the court. In such case the court, in declaring the corporation organized on finding the necessary facts, only declares the law which attaches upon such finding, and which becomes operative only when the proper precedent steps have been taken.
    10. Same—a power carries with it the means to make it effective. An express grant of power to the legislature by the organic law, to do a certain thing, without any words of limitation or restriction, carries with it all necessary and proper means to make the power effectual, and the legislature, in such case, is the sole judge of the means to be employed to promote the end designed.

      Writ op Error to the County Court of Edgar county; the Hon. Andrew J. Trogden, Judge, presiding.
    This was a proceeding commenced in the county court of Edgar county, under section 2 of the Drainage act of May 29, 1879, known as the “Levee act, ” for the formation of a drainage district, and the assessment of benefits upon the lands embraced therein, above damages. The petition, signed by a majority of the adult land owners having more than one-third of the lands in the proposed district, was filed in the county court on February 18, 1882, and properly described the lands sought to be incorporated into the proposed district, and was verified by affidavit. On the hearing, the petition was dismissed as to the lands of one of the original defendants, and three commissioners were appointed by the court, and the district was, by an order of court, established, by the name of the “Sims Special Drainage District.” The commissioners, by their report, found the probable cost of constructing the necessary drains, and annual cost of keep-j ing the same in repair, and certain other facts, as required by the act. They also found that the benefits would greatly exceed the cost of constructing the work, and that there would be no lands injured, but all would be benefited, and also found that other lands not named in the petition would be benefited by the proposed work, which were described, and included by the commissioners in the proposed district. On March 12, 1883, an order was made confirming the report of the commissioners, and establishing the district, and ordering that a jury be summoned to assess benefits and damages. On March 30, 1883, the report of the jury was filed assessing benefits upon the lands in the district. No damages were reported in the column set apart for that purpose. After exception to the report, the jury, on April 24, 1883, made and returned to the commissioners a new assessment roll, which was' returned by them to the county court. In this roll the lands of Almira Poor and Edmund Sheehey were described as being in township 14, north, range 12, west, instead of “14, north, range 13, west.” On June 12, 1883, the court granted leavé to the foreman of the jury to amend the assessment roll, so as to correct the mistake in the description of the lands of these parties, which was done.
    The court overruled exceptions taken to the report of the jury, and confirmed the sainé as amended, and ordered that such assessment be paid,—twenty-five per cent thereof on September 1,1883, fifty per cent January 1, 1884, and twenty-five per cent April 1, 1884. No question was made as to the regularity or sufficiency of the notices of the various meetings. The errors assigned are—
    First—The act of the legislature is unconstitutional and void, and therefore the court erred in proceeding under it.
    Second—The petition was insufficient to give the court jurisdiction, in failing to give a “general description of the lands embraced in the proposed district, with the names of the owners, when known.*”

    Third—The court erred in making the order establishing the district, the commissioners’ report failing to show what lands would be damaged.
    Fourth—The court erred in ordering a jury, and having them assess benefits.
    Fifth—The court erred in allowing the foreman of the jury to amend the assessment roll.
    Sixth—The court erred in overruling the objections to the assessment roll, and in confirming the same.
    Seventh—The court erred in not dismissing the whole proceeding in each and every stage thereof.
    Mr. Henry Tanner, and Mr. James A. Eads, for the plaintiffs in error.
    Messrs. Sellar & Dole, for the defendants in error.
   Mr. Justice Dickey

delivered the opinion of the Court :

The principal objection urged against the validity of the proceeding and the judgment of the county court is, that the act of May 29, 1879, under which they were had, is unconstitutional and void, as an attempt to confer upon the judicial department the power of taxation. It is claimed that the district organized was the act of the county court, and not that of the people residing therein, and it is urged that the commissioners, who are called the “corporate authorities” of the district, were not elected by the people of the district, nor appointed in any mode to which they had given their assent, and that the assessment of benefits is no.t by the act required to be made by the “corporate authorities” of the district, but by a jury selected by the county court. We do not think the act is liable to the objection that it attempts to invest the county court with the power of taxation for the district when formed. The act does not attempt to confer any such power. By section 31, article 4, of the constitution, adopted at the November election, 1878, the General Assembly may “provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct, * * * by special assessment upon property benefited thereby. ” In this there is no limitation upon the legislature as to the mode of forming such districts, or as to the agencies or instrumentalities to be used in their creation. As said in Blake v. The People, 109 Ill. 504: “Surely there can be no reason why the county court may not be invested with power to inquire into and find the existence of certain preliminary facts deemed important, as prerequisites to the corporation. This is not unusual, but in all like eases, where the facts deemed necessary to be found are of a nature that the’ General Assembly can not conveniently investigate them,- the practice has been to refer their determination to some local tribunal.

An express grant of power to do a certain thing, without any words of limitation or restriction, carries with it all necessary and proper means to make the power effectual, and the body to whom such power is given is in such case the sole judge of the means to be employed to give it practical effect, especially where that body, except so far as limited and restricted, has plenary power. The fact that the county court is required to find certain essential facts preliminary to the formation of a corporate body, does not make that body, when formed, the creature of the court. The court having found facts ini declaring the corporation organized, only declares the law which attaches to such facts, and becomes operative when the proper precedent steps have been taken. In finding the facts, the county court does nothing more than any other court or other officer does under similar circumstances. The judges of election, in canvassing the votes and certifying to the number of votes cast for the several candidates, do not elect any one. The election is the act of the qualified electors, under the law. It would be often impracticable for the legislature to ascertain certain facts upon which rights, duties and responsibilities attach, and these may be left to be determined even by ministerial officers. When found, the consequences flowing from their existence are the result of the law, which, of course, would never have attached but from the fact of the existence or performance of such acts, and a finding of the same in some mode prescribed by law. The constitutional provision does not require that the corporate authorities who may exercise this power shall be elected by the people of the district. The special amendment of the constitution adopted in 1878, so far as it invades the former limitations of the constitution, must prevail, and such limitations are not applicable to the subject matter of this special amendment.

It is also urged that the special assessments are not required to be made by the commissioners or corporate authorities of the district, but by a jury selected by the county court. It will be seen that the commissioners are first required to find the sum necessary to be raised by special assessment, to consummate the proposed work, etc. The jury called have nothing to do with fixing the aggregate sum to be raised by special assessment. They only apportion that sum already found, among the several tracts of land according as they may be severally benefited, and in no case can the sum assessed against any one tract of land exceed the benefits it will receive. It can not, therefore, be said that the jury levy the assessment of benefits.

It is contended that the petition in this case was not sufficient to give the county court jurisdiction of the subject matter, because it does not give the names of the owners of the lands within the proposed district. It is true that section 2 of the act contemplates that the petition shall give the names of such owners, if known; but the statute does not seem to be mandatory in this respect. It says that persons desiring to form a drainage district “may file” a petition setting forth certain matters, “with a general description of the lands proposed to be affected, with the names of the owfiers, when knoion. ” The notice required to be given of the filing and presentation of this petition is not required to state the names of the owners of the lands, or set out a copy of the petition. It would seem the only purpose served by giving the land owners’ names in the petition would be to notify them of the proceeding, and afford them an opportunity to defend. In this case the owners appeared and contested the application at every step. This would obviate the necessity of any notice to them of the proceeding, and give the court jurisdiction, and after having contested the case upon the merits, it is-now too late to take advantage of a formal defect in the petition, if there was any, which might have been cured by an amendment, if objected to in proper time.

• By section 9 of the act, the commissioners are required, among other things, to report to the court what lands will be injured by the proposed work, and the probable amount of all damages, etc. The commissioners reported that no lands would be injured by the drainage or the construction thereof. It is claimed that their report, and the proceedings, show that the proposed drains will pass over lands, and that the open ditches will be from ten to fifteen feet wide. The record fails to give the evidence on this point, and the court having confirmed the report, it will be presumed that the evidence heard, justified the court in approving the report and finding that no lands would be injured by the drainage. It does not necessarily follow that a drain through a tract of land is an injury to the same. On the contrary, there are cases when it would be a great benefit, and no damage at all. Besides, it does not appear that any one claimed any damages for the construction of any drain over his land.

One of the exceptions taken to the assessment roll returned by the jury is, that the jury did not allow any compensation or damages for the land taken for the making of the drain, except $25 on one tract, to Edmund Sheehey. In addition to what has just been said, it will be observed that by section 17 of the act it is only the balance of the benefits or damages that is to be carried forward to a separate column. The clause of that section bearing on this point reads: “And in case damages are allowed to and benefits assessed against the same tract of land, the balance, if any, shall be carried forward to a separate column for damages or benefits, as the case may be.” It is true section 18 directs the jury to “assess the damages and benefits against each tract separately, in the proportion in which such tract of land will be damaged or benefited, ” but it does not require that the amount of each shall be entered in the roll, while the preceding section directs only that the balance or excess of the one over the other be carried forward to a column, etc. The column in the assessment roll for damages contains no entry of any damages, and it will be presumed that the column headed “benefits, ” shows only benefits in excess of damages, even if the record showed there were any damages. In such a case it would be presumed, in favor of the judgment below, that the jury did allow damages, and that the amount of benefits assessed was the amount of benefits less the damages. •

It is insisted that the court erred in permitting the foreman of the jury to correct and amend the assessment roll after the jury had separated and gone home. This objection applies only to two tracts of land, and, if well taken, could not avail any of the plaintiffs in error except Almira Poor and Edmund Sheehey, the owners of such tracts. All the lands composing the district were in township 14, north, range 12, west, except one belonging to Miss Poor and one to Mr. Sheehey, which were in township 14, north, range 13, west. This clearly appears from the petition and the map accompanying the same as an exhibit, as well as from the surveyor’s .plat and certificate embodied in the commissioner’s report. The clerk, in making out the assessment roll with a list of the lands for the jury to assess, by mistake described all of the lands as in range 12, west, which mistake was not discovered until after the jury had separated. It is evident that the misdescription of the two tracts was a mere clerical error. This is apparent by considering the whole record together. The court could not call a jury to assess any other lands than those named in the petition and the order of the court. There was enough in the record from which to make the amendment, and it was proper to allow the foreman of the jury to correct the report and assessment roll. Section 22 of the act provides that if no objection is made to the assessment at the time and place appointed to hear objections, or if it is found correct, or is corrected, the jury shall confirm the assessment, which shall be certified by the foreman of the jury and delivered to the commissioners. Thus it is seen that the foreman alone is required to certify to the assessment, and that being so, no good reason is perceived why he may not, by leave of court, correct a clerical error in the roll showing the assessments, especially as the statute does not make such assessment final until after a further hearing in the court.

Some other objections have been made, which we do not consider it necessary to answer in detail.

We find no error in the record demanding a reversal, and the judgment will be affirmed.

Judgment affirmed,.


author: Mr. Justice Walker

text:
    Louisa S. Meserve v. Henry Delaney.

      Filed at Ottawa November 17, 1884.

    1. Dismissal of appeal—upon failure to prosecute. An executor appealed from an order of the county court allowing a claim against the estate, to the circuit court, but failed to file any transcript, or to prosecute the appeal, for six years, when the appellee paid the county clerk $2.50, (his fees for making a transcript,) and $6 docket fee, and the circuit court, on motion of the appellee, entered a rule upon the party appealing to pay the former $8.50 “appeal costs” within five days, and on default of such payment, after notice, the court dismissed the appeal. Held, the action of the court was proper.
    2. Making transcript of record—fees therefor—right of clerk or justice to demand, payment in advance. A county clerk or justice of the peace is not bound to make a transcript of the record in case of an appeal, without being paid his fees, and it is the duty of the party seeking the appeal to pay them. If the officer, on tender of his fees, refuses to make and certify the transcript, a rule should be taken on him to do so.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Mr. H. O. McDaid, for the appellant.
    Mr. John R. Parker, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This is an appeal from the Appellate Court for the First District. The amount involved is the trifling sum of $8.50, but the appeal was granted by that court on a certificate that the case involves a question of such importance, on account of principal and collateral interests, as that it should be passed upon by this court. The question is, whether the circuit court erred in entering this order: ' “On motion of the appellee, by his attorney, the said appellant is hereby ruled to pay to said appellee $8.50 appeal costs, within five days from this date, or in default thereof, suit to be dismissed out of this court.”

It appears that more than six years before this order was entered, appellant, Louisa S. Meserve, prayed an appeal from an order of the county court allowing a claim against an estate of which she was executrix. She executed an appeal bond, which was approved by that court. She, however, took no further steps to prosecute the appeal. Appellee, Delaney, procured a transcript of the judgment appealed from, and paid the clerk of the court $2.50,—his fees for making the transcript. He filed it in the.circuit court of Cook county, and paid the docket fee of $6, and moved for and obtained the order, a copy of which being served on appellant, and she failing to answer the rule, it was made absolute, and the appeal dismissed.

Numerous objections are urged against the dismissal of this appeal.. It is claimed that the court has no power to enter and enforce such a rule; that the appeal bond covers this and all other costs that appellee may recover against appellant, and the court exceeded its power in entering and enforcing the rule. The uniform practice in the circuit courts in the State, it is believed, has been, from the organization of our judicial system, to dismiss appeals for want of prosecution,—nor are we aware that the power has ever before been questioned. In this case the appeal had been perfected moro than six years, and yet appellant had taken no further steps for its prosecution with effect. This undeniably put appellant in default, and authorized the dismissal of the appeal for that reason.

The power of the court to make an order like that in this case, is fully recognized in the cases of Edwards v. Duling, 36 Ill. 351, and Garrity v. Bash, 84 id. 73. The power to enter and enforce such an order is established by these cases, and further discussion of that question is unnecessary. After repeated decisions of the same question in the same way, it must be regarded as settled, and there is nothing beneficial to be obtained by its further discussion. The business of the country, the security of rights, and the well being of society, depend largely upon the stability of the laws as interpreted by the courts, and the speedy administration of justice equally demands that the rules of practice shall be uniform, and free from vacillation and constant change. There can be no benefit arising from constantly mooting questions that should be, and the best interests of society require to be, regarded as settled. We therefore decline to go into further discussion of that question, especially as no new arguments have been urged by appellant.

In the case of Edwards v. Duling, the practice in such a case as this is clearly stated. It is there held that in case appellant fails or refuses to take the necessary steps to have his case docketed, the appellee may; and on doing so, he may have a rule on appellant to refund the docket fee, and failing to do so, the appeal will be dismissed, and that notice of such rule should be served on appellant. Here it is expressly held that a rule may be entered against appellant to show cause why the docket fee advanced by appellee should not be refunded or the appeal dismissed when appellant is served with the rule, and on failing to comply with the rule the appeal should be dismissed. In this case appellant had failed to take the necessary steps to have her appeal placed on the docket, for more than six years, and had manifestly failed to prosecute the appeal with effect, and a rule could have been entered to show cause why the appeal should not be dismissed for want of prosecution. But appellee chose to have this rule entered in preference to the other. Here, the rule was entered after appellee had paid the docket fee and the costs of the transcript, the appeal docketed, and the rule served on appellant. The case comes within the practice indicated in Edwards v. Duling, supra.

In the case of Thayer v. Peck, 93 Ill. 357, the appeal from the justice of the peace had been perfected by filing bond, and its approval, but appellant failed to have the papers and transcript of the justice’s docket filed in the clerk’s office of the appellate court, and the cause docketed. Appellee, as he had a right to do, had the papers and transcript filed, paid the docket fee, and had the case placed on the docket. He then gave notice to appellant that he would ask a rule on him to refund “appeal fees.” Appellant failing to appear at the time fixed, the court entered a rule on him to refund such fees instanter, and for non-compliance therewith the appeal was dismissed. Subsequently a motion was made to set aside this order, but it was refused. It was held, as in the case of Edwards v. Duling, supra, that it is the duty of the person appealing to cause the papers in the case to be filed with the clerk of the court to which the appeal is prosecuted, and to advance such fees as are required by the statute to be prepaid. Failing to appear and show cause against the entry of a rule to refund instanter the “appeal fees” advanced by appellee, the court had the power, in the exercise of a sound discretion, to dismiss the appeal. It is true, in this latter case the notice was given before the application was made for the rule; but whether given before or after the rule is entered, can not matter, as, in either case, the same reasons can be shown why, the rule should not be made absolute.

We can imagine no possible excuse for delaying in this case, for more than six years, to prosecute the appeal. It was an abandonment of the appeal that was incapable of explanation. But if any valid excuse did exist, it could have been shown in answer to this rule, as it was in the discretion of the court to make it absolute, or vacate it, as justice should require, as .intimated in Garrity v. Bash, supra.

It is, however, urged, that it is made the duty of the clerk to transmit the appeal bond, transcript and papers in the case to the appellate court within twenty days after the appeal was perfected. This is true. But in case he fails to do so, it becomes the duty of appellant to see that he performs that duty, under his obligation to prosecute his appeal with effect. The clerk or justice is not required to make the transcript without being paid his fees therefor, and it is the duty of appellant to pay them, and if the clerk or j ustice refuses to make the transcript on being tendered his fees therefor, the appellant may take a rule on the clerk or justice to compel him to perform the duty; or if appellee has paid or tendered the fees, and the clerk or justice fails to transmit the papers, etc., he may compel him to do so by a like rule. But to obtain this rule, he is compelled, under the statute, to docket his case, and before he can have it placed on the docket he must pay the docket fee; He is liable for these fees, and must pay them, if demanded, before he can have the case docketed. When he fails to do so, appellee may pay them, docket the case, and move for a rule that they be refunded or the appeal dismissed.

But it is urged that even admitting appellee in this case was compelled to pay the docket fee before he could obtain a rule to dismiss the appeal for want of prosecution, still he was not required to pay the cost of the transcript. In the cases of The People v. Rockwell, 2 Scam. 3, and The People v. Harlow, 29 Ill. 43, it was held that the clerk has the right to demand his fees when the services are rendered. In the former case it was held that a clerk is not required to deliver a transcript of the record until his fees were paid. therefor, and in the latter case it was held a clerk was not required to deliver process until his fees were paid for issuing it. These cases are decisive of this question. It then follows that appellee in this ease was justified in paying the fees for the transcript and in demanding them to be refunded to him.. If the clerk demanded the fees, appellee was compelled to pay them before he could have the appeal dismissed to which he was entitled. If he paid them voluntarily, he had the right to have them refunded before appellant could be entitled to the benefit of the appeal. He offered appellant the benefit of the appeal upon the condition she would refund the fees, but she declined the offer by refusing to pay them to prevent a dismissal of the appeal. Had she complied with the rule, and paid the amount named in the rule, she could have demanded a trial, and that the case remain on the docket until reached for trial under the practice of the court. In the case of Garrity v. Bash, supra, it will be observed that the rule required the payment of “appeal fees,” which included more than the docket fee, and yet the rule was sustained. We have no doubt that the cost of transcript to get the appeal in the appellate court is as fully within the necessary costs as is the docket fee. The court below therefore committed no error in embracing it in the rule.

Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scholfield

text:
    Charles M. Hardy v. George H. Rapp.

      Filed at Ottawa November 17, 1884.

    1. Triad by the court—saving questions of law. Where a jury is waived, and a trial had before the court alone, and no questions of law are raised upon the admission or exclusion of evidence, and no propositions of law are presented to the court to be ruled upon, the record will present no question of law for the consideration of this court.
    2. Appear—reviewing facts, the judgment of the Appellate Court affirming that of the circuit court, in an action on a promissory note, conclusively settles all questions of controverted fact in favor of the finding below.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Chas. M. Hardy, pro se.

    Mr. Joseph Pfirshing, for the appellee.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This was an action of assumpsit, by the payee against the makers of a promissory note.

The appellant contended, upon the trial in the circuit court,first, that he was a mere surety on the note; second, that, being only such, appellee extended the time of payment on the note, by a valid agreement, without his consent; and third, that, as such surety, at the maturity of the note he notified the holder thereof, in writing, under the statute, to bring suit against the principal maker of the note, otherwise he would claim to be discharged from liability, and that no suit was brought pursuant to such notice. Evidence was submitted upon these questions, to the court, who, by agreement of parties, tried the case without the intervention of a jury, and judgment was rendered in favor of appellee for the amount due upon the note.

No questions of law were raised upon the trial in admitting or excluding evidence, and no propositions of law were presented to the court, pursuant to the statute, to be ruled -upon. There is, therefore, no question of law arising upon this record for our consideration. The judgment of the Appellate Court affirming that of the circuit court, conclusively settles all questions of controverted fact against appellant. Tibballs v. Libby, 97 Ill. 552; Wrought Iron Bridge Co. v. Commissioners of Highways, 101 id. 518; Sconce v. Henderson et al. 102 id. 376; Bennett v. Connelly, 103 id. 50; Fitch v. Johnson, 104 id. 111; Edgerton v. Weaver, 105 id. 43; Pullman Palace Car Co. v. Bluhm, 109 id. 20; Chicago, Rock Island and Pacific Ry. Co. v. Lewis, id. 120.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    The Chicago, Burlington and Quincy Railroad Company v. Mary J. Bell, Admx.

      Filed at Ottawa September 27, 1884.

      1. Appeal—reviewing facts—and what are considered questions of fact relative to negligence. In an action to recover for an injury resulting from alleged negligence in the management of a train of cars, the questions presented, whether any notice was given of the dividing of the freight train in a particular manner, or whether any warning was given of a sudden movement of the train, (the immediate cause of the injury,) or whether the party thereby injured or killed was at the time using due care for his safety, or whether he was a fellow servant with others to whom the negligent acts were attributed, are questions of fact not subject to review on the evidence in this court, except so far as they may have a bearing upon the instructions given or refused.

      2. Allegations and proofs—as regards the grounds of alleged negligence. A plaintiff suing a railway company to recover damages growing out of negligence, will be confined in his evidence to the specific acts of negligence alleged in his declaration as the cause of his action. His allegations and proofs must agree, and he can not charge in his declaration, as a ground of action, a specific act of negligence, and succeed on the trial by proving another wrongful act wholly different from that charged.
    3. In an action against a railway company to recover damages for the death of the plaintiff’s intestate, where the negligence charged in each count of the declaration is, that while the deceased was on one of the cars of a freight train for the purpose of assisting in unloading stone, he was, by a sudden jerk or movement of the train, of which no notice or warning was given by those having it in charge, thrown down between the cars, and run over and killed, it was held, that no recovery could be had on the ground that the foreman, under whom the deceased was employed, recklessly and negligently ordered him to go upon the cars having the stone, before they were detached, and that he obeyed such order.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. O. F. Price, and Mr. William C. Norcross, for the appellant:
    It was incumbent on the plaintiff to prove, by a preponderance of evidence, that the deceased used ordinary care. Railroad Co. v. Johnson, 103 Ill. 521; Railroad Co. v. Evans, 88 id. 63; Railroad Co. v. Harwood, 90 id. 429; Allyn v. Railroad Co. 105 Mass. 77; Railroad Co. v. Green, 81 Ill. 19; Pennsylvania Co. v. Lynch, 90 id. 334.
    It was the duty of the deceased to watch the train, and not get on until it had stopped. Railroad Co. v. Donahue, 75 Ill. 108; Railway Co. v. Black, 88 id. 115.
    Had he been paying that attention to the business in hand that due care and diligence demanded he should, he would have heeded the directions given by Larson to Smith in regard to dividing and moving up the train, and would have avoided the injury. Railroad Co. v. Elliott, 28 Ohio St. 340; Maher v. Railroad Co. 64 Mo. 297.

      Even if Larson had told deceased to get on the car then, still the latter would have to exercise reasonable care, which would have forbidden his getting on between the cars. Railroad Co. v. Sykes, 96 Ill. 171; Railroad Co. v. Dewey, 26 id. 258.
    Deceased was a fellow servant with those in charge of the train. Railroad Co. v. Moranda, 93 Ill. 316; Railroad Co. v. Cox, 21 id. 20; Railroad Co. v. Keefe, 47 id. 108; Railway Co. v. Britz, 72 id. 108; Durkin’s case, 76 id. 395; Voltz’ case, 85 id. 500; Mining Co. v. Kelt, 42 Mich. 36; Coon v. Railroad Co. 1 Seld. 492; Whalen v. Railroad Co. 8 Ohio St. 249; Greenly v. Railroad Co. 72 Ind. 32.
    Messrs. Kirkpatrick & Alexander, and Mr. Raus Cooper, for the appellee:
    The deceased had a right to believe that his superior knew better than he did of the situation, and would not order him into a dangerous place. Railroad Co. v. McLallen, 84 Ill. 109; Railway Co. v. Bayfield, 37 Mich. 210; Railway Co. v. Jackson, 55 Ill. 492.
    The employer must also provide a suitable place in which the servant, exercising due care, can perform his duty without exposure to damages that do not ordinarily come within the obvious scope of such employment, as usually carried on. Swoboda v. Ward, 40 Mich. 420; Coombs v. New Bedford Cord Co. 102 Mass. 572; Hough v. Railway Co. 100 U. S. 213; Railway Co. v. Taylor, 69 Ill. 461; Fairbanks v. Haentzche, 73 Ill. 236; Railroad Co. v. Swett, 45 Ill. 197.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal by the Chicago, Burlington and Quincy Bailroad Company, from a judgment of the Appellate Court for the Second District, affirming a judgment of the Henderson circuit court for $3041.66, which Mary J. Bell, as administratrix of the estate of Alexander Bell, lately recovered against the company, in an action on the case, for wrongfully and negligently causing the death of the said Alexander Bell.

The facts giving rise to this suit are as follows: On the 22d of March, 1883, and for some time prior thereto, the deceased was in the employ of the appellant as a common laborer, and was usually occupied in doing repairs on the company’s road, sometimes at one place, and sometimes at another. On the day just mentioned, Bell, together with some twenty-five others in the company’s service, were engaged in riprapping a high embankment at bridge No. 52, on the line of the company’s road. This force or gang of men was under the immediate control and directions of James Larson, as boss or foreman. The stone used in riprapping this embankment was brought in open cars from a neighboring quarry, connected by a switch with the company’s road, near Gladstone, a station some three miles west of where Larson’s force was at work. The train which brought the stone was in charge of one Smith as conductor, and Loosley as engineer, who were no part of Larson’s force. Neither Larson nor any of those under him had anything to do with the running or management of the train. They were not carried upon it either in going to or coming from their work, nor did they have anything to do with either the quarrying or loading the stone. In fact, the only connection they had with the train, or with those having charge of it, was to unload it after its arrival at the bridge. This was a part of their duty. Between 11 and 12 o’clock of the 22d of March, 1883, this train, consisting of nine or ten open cars loaded with stone, coming from the west, passed the place where Larson • and his men were at work, and continued in that direction until out of sight. After reaching Biggsville, a short distance east of the bridge, the engine was reversed and the train pushed back to .the bridge. On approaching there, the train moved slowly backwards till the two rear cars had cleared the west end of the bridge, where they were directed to be detached. The deceased, together with others of Larson’s force, was at this time east of the bridge and on the south side of the embankment, About the time the train stopped, and probably before it had entirely ceased moving, Larson ordered his men to board the cars,—four men to the car,—and unload the stone, which they proceeded to do. There is but one witness who claims to have observed Bell’s movements from the time this order was given up to the time of his death. This witness states that when the order was given the deceased was about one-third of the way up the grade with a wheelbarrow loaded with stone; that instead of boarding the train at once when ordered, he took the wheelbarrow down to where the men were riprapping, and unloaded it; that he then went up the embankment to the train, the two cars west of the bridge having in the meantime been cut off, and had barely got aboard, when, by a sudden jerk or movement of the train east, he lost his balance, and fell or was thrown between two of the cars, the one west of him passing over his body and causing his instant death.

Whether any notice was given of the dividing of the train in the manner stated, or whether any warning was given of the sudden movement of the train east, which was the immediate cause of Bell’s death, or whether he was using due care himself at the time in question, are controverted questions of fact, with which we have no concern, except so far as they may have a bearing upon the court’s instructions to the jury. It is manifest, from the record, these questions were the frictional points upon which the case turned before the jury, and their finding upon them having received the sanction of the Appellate Court, it is of course final and conclusive upon this court. The case is submitted here upon the Appellate Court briefs alone, which are chiefly occupied with the discussion of the weight of evidence upon the controverted questions of fact just adverted to. This was very pertinent and altogether proper in that court, but for obvious reasons it is otherwise here.

So far as the instructions of the court are concerned, we find no substantial grounds for complaint. The few objections urged against them are quite technical, and are not of sufficient importance to demand discussion at our hands. As a whole, we think they fairly presented the law of the case to the jury, and this was sufficient. On the other hand, we think several of the positions taken by appellee are unsound. For instance, it is earnestly urged that it was gross negligence to order the deceased to board the cars before the train had fully stopped moving, and it is insisted that in this respect it is governed by the May case. There is more than one good answer to this position. Assuming it was a proper question for the consideration of the courts below, it was clearly one of controverted fact, that was finally settled by the affirmance of the judgment in the Appellate Court, and we therefore have nothing to do with it. But another conclusive answer is, that this alleged wrongful order of Larson is not set forth as a cause of action in either of the four counts of the declaration, and it is hardly necessary to add, it can not, for that reason, be availed of here or elsewhere. The allegations and proofs must agree. One can not charge in his declaration, as a ground of action, a specific act of negligence, and then succeed on the trial by proving an act wholly different from the one .charged. The negligence charged in each count of the declaration in this case is, that while the deceased was on one of the cars for the purpose of assisting in unloading the stone, he was, by a sudden jerk or movement of the train, of which no notice or warning was given by those having it in charge, thrown between the cars and killed. Conceding, then, Larson did give a rash and negligent order to the deceased, and that it was obeyed by him, as is claimed by appellee, still that fact would not be any evidence of the negligence charged in the declaration, and consequently could afford no ground of recovery under the declaration, as framed. It is clear, therefore, the principle on which the May case was decided has no application here. When we look at the declaration, it is evident this case is confined within very narrow limits. Did Bell lose his life by the train starting suddenly and without warning? The trial and Appellate courts have both said he did, and we are not permitted to interpose upon this question.

What is here said is equally applicable to the claim that those having charge of the train were fellow servants of the deceased, and that there can be no recovery on that ground. The question thus presented is one of fact, which depended upon a variety of circumstances that were put in evidence before the jury, and they having passed upon it, we are not, as already stated, permitted to review their finding, go far as the trial court made any ruling upon this subject, by instructions or otherwise, that may be reviewed here, but that is all. This is expressly held in Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 Ill. 216, and perhaps we can not do better than to conclude our observations on this question by repeating what was there said. After citing several authorities to show that while it is the province of law to define or determine what negligence is, yet, whether negligence exists in a particular case is one of fact, the court then proceeds: “What has been said in relation to the question of negligence may also be said in regard to fellow servants. The definition of fellow servants may be a question of law, but it is always a question of fact, to be determined from the evidence whether a given case falls within the definition. Whether the deceased and Bray were fellow servants depended upon a variety of facts, which had to be proven before the jury. The inquiry would arise whether they were in the service of a common master; were they engaged in the same line of employment; were the existing relations between them of such a character and their duties such as to bring them often together, cooperating in a particular work. These, and perhaps other facts of a kindred character, were matters to be proven before the jury, and from the facts thus proven it was for the jury then to say whether the two servants, in the discharge of their duties, were fellow servants. Had appellant desired to raise the question for decision in this court, whether, under the evidence, the deceased and Bray were fellow servants, it might have done so by an appropriate instruction; but under the statute we can not review the evidence, and from it determine the question. ”

All that we have cited from that ease is equally applicable to this ease, and is conclusive of the question in hand. The law, as laid down by the court in the present case, relating to this question, is exceedingly favorable to the appellant, and there is clearly no ground to complain on that score.

Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Ellen Smith v. Elizabeth M. Dennison.

      Filed at Ottawa November 17, 1884.

    1. Parol evidence—to identify what is supposed to pass by will. For the purpose of determining the subject of disposition by will, or the quantity of land intended to be given, the court may inquire into every material fact relating to the property which is claimed as the subject of disposition, to enable it to identify the thing intended to be devised by the testator, or the quantity of interest he has given by his will.
    2. So where the owner of a half section of land had conveyed forty acres of the south quarter, and he devised twenty acres more of the same, and then gave the north quarter to a daughter, subject to a life estate in his widow, and one hundred acres (being the residue unsold and not devised, of the south quarter,) to another daughter, it was held, error to exclude evidence showing that the testator had adopted a line between the two quarters as the true one, whether correct or not, as tending to show that the devise was made in accordance with such adopted line.

      3. Devise—description—presumption as to quantity of land devised. Where a testator clevises a quarter section of land, except sixty acres thereof, the devise will prima facie embrace all the land in such quarter section included in the government survey, except the sixty acres; but such presumption is not conclusive. It may be shown that prior to the devise the. testator had adopted a corner between this and an adjoining tract, in which event the devise will be limited to the number of acres in the tract according to such adopted boundary line.
    Appeal from the Circuit Court of Warren county; the Hon. S. P. Shope, Judge, presiding.
    Mr. James M. Davidson, and Messrs. Williams & Lawrence, for the appellant:
    The adoption of a line between the two quarters, by the testator, may be shown, to identify what was intended by the devise. 3 Greenleaf’s Cruise on Real Prop. 200, 175, 227; 2 Story’s Eq. Jur. sec. 1074; 1 Redfield on Wills, 436, 437; Doran v. Mullen, 78 Ill. 342; Kennedy v. Kennedy, 105 id. 350; Blanchard v. Maynard, 103 id. 60; Updike v. Tompkins, 100 id. 406; Caruthers v. McNeill, 97 id. 256; Welsch v. Belleville Savings Bank, 94 id. 191.
    Messrs. Grier & Dryden, for the appellee:
    Where land is conveyed by government description, or by metes and bounds, or other definite description, and the monuments and boundaries can be ascertained, these control and are to be regarded, rather than quantity. McEvoy v. Lloyd, 31 Wis. 185; Jackson v. Barringer, 15 Johns. 472; Mann v. Pearson, 2 id. 43.
    Quantity is the least certain element of description, and if inconsistent with established boundaries, must be rejected. Washburn on Real Prop. p. 669, sec. 39; Cottingham v. Parr, 93 Ill. 233.
    “Sixty-three acres, being the south-east quarter,” etc., was held to convey all the land in that quarter, although greatly in excess of that named. (Kruse v. Scripps, 11 Ill. 103.) So where land is described as the part of a certain survey remaining after a prior conveyance, such residue will pass, although the metes and bounds given in the deed do not include it. Ragsdale v. Robinson, 48 Texas, 380.
    A description of land by numbers of sections, makes the plats and field notes of the public surveys a part of the description. McClintock v. Rogers, 11 Ill. 279.
    The four corners of section 2 are known and recognized government corners, and the north-east and south-east corners being known, the law prescribes the method by which the quarter corner on the line between 1 and 2 shall be established, viz: “All quarter corners upon boundaries of fractional sections must be set at points between known corners, proportionate to distances in original field notes.” Colvin v. Fell, 40 Ill. 318; Martz v. Williams, 67 id. 306; Neff v. Paddock, 26 id. 551; Prentiss v. Brewer, 17 Wis. 661; Jones v. Kimball, 19 id. 452.
    If original monuments can be found, they must govern, and they must be looked for at the tract or lot in dispute, and if none can be found there, then more distant ones may be resorted to from which to make the survey and measurement. McClintock v. Rogers, 11 Ill. 279; Manley v. Gibson, 13 id. 308; Martz v. Williams, 67 id. 306; Nye v. Bennett, 44 Wis. 104; Marsh v. Mitchell, 25 id. 706.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, brought by Elizabeth M. Dennison, against Ellen Smith, to recover the possession of a strip of land claimed to lie on the north part of the southeast quarter of section 2, in township 11, north of range 2, west of the fourth principal meridian, situated in Warren county. Both parties claim title under the will of Norman Buck, their father. Norman Buck in his lifetime was the owner of the east half of said section 2,—the north-east quarter containing, according to government survey, lSé^gacres, and the south-east quarter 160 acres. He had conveyed 20 acres in the south-west corner of the south-east quarter, and also 20 acres in the south-east corner of the south-east quarter. By his will, dated September 20, 1856, he devised to his daughter Emily -Buck 20 acres in the northwest corner of the south-east quarter; to his daughter Ellen Buck, now Ellen Smith, the defendant, he devised the northeast quarter of said section 2, subject to a life estate in his wife; to his daughter Elizabeth M. Buck, now Elizabeth M.. Dennison, the plaintiff, he devised the west half of the southwest quarter of section 1, also 100 acres, being the residue unsold and not bequeathed of the said south-east quarter; and to his wife, Maria Buck, he devised a life estate in the north-east quarter given to his daughter Ellen. Norman Buck died in October, 1856, and his wife in July, 1881. In 1871 a survey and measurement of said east half section were made by Thomas S. McLannahan, county surveyor, by which it was found that the half section contained a surplus beyond what was shown by the government survey, of 14t8_7^ acres, and by an admeasurement according to established government corners, the true line, as determined by the county surveyor, was fixed between said quarters, and the surplus divided pro rata between them,—10t6o80- acres being allotted to the north-east quarter, and ÍjYt acres the southeast quarter,—increasing the north-east quarter to 165t6q3q-acres, and the south-east quarter to 164^-^ acres. This action was brought to recover the possession of that portion of such surplus which lies north of the 100-acre tract, or between the “old turn-row” fence, as called, and the line established by McLannahan in 1871. The verdict and judgment were in favor of the plaintiff, and the defendant appealed.

The exclusion of the eighth interrogatory, and the answer thereto, in the deposition of John M. Owens, taken on behalf of. the defendant, is assigned as error. It' appeared from the evidence, that at one time Owens owned and resided on the adjoining north-west quarter of .section 1, in the same township and range, while Norman Buck owned the east half of said section 2, and the south-west quarter of said section 1. The excluded testimony was to the effect that there was a double fence between Owens’ and Buck’s land, both on the west and south sides of Owens’ land; that Buck came to Owens and said it was useless to keep up separate fences, and proposed to have the lines established between them, and by consent of Owens, Buck procured the services of Paddock, the county surveyor, for the purpose. Paddock made the survey, finding what he thought to be the proper corner, and the result of the survey showed Owens to have 10 or 12 acres more land than his deed called for; that Buck proposed they should divide the surplus between them, but Owens said they had agreed to leave the whole matter with the surveyor, arid he meant to do so; that “Mr. Buck said, at that time, our children should not quarrel over the division line, and that he would plant a rock to mark the corner, and there it must remain. He (Buck) wanted to commence right away to move the fences on to the line, ” etc. This corner was on the east line of Buck’s land. There was testimony that by Paddock’s survey the land in dispute was on the north-east quarter of section 2. ' We are of opinion the court erred in the exclusion of this offered testimony,—not because of its tending to show that the corner established by Paddock was the true corner, but because of its tendency to show what was the land which was devised to defendant under the description of the north-east quarter of section 2. " Prima facie, it would be the land which would be found -by the government survey to be included in that description, but not conclusively so, we think. We understand, from the evidence, that the transaction spoken of by Owens occurred in 1848,—a long time before the making of the will. Now, if by agreement with Owens, the owner of the adjoining north-west quarter of section 1, the testator, long before making his will, had established this corner as the south-east corner of the north-east quarter of section 2, and had ever after, as there is evidence tending to show, recognized and adopted this as the true corner, it would tend to show what were the lands which he intended to devise, respectively, to these two daughters, by the descriptions which he used,—that the land described as the north-east quarter of section 2 was land whose south-east corner was this established corner, and that the line produced from this corner was the division line between these two quarters, the north-east and south-east, which he devised to his daughters. Of the south-east quarter the testator had previously conveyed away 40 acres off from the south side; by the will he devised to another daughter 20 acres more in the north-west corner of the quarter, and then devises to the plaintiff “100 acres, being the residue remaining unsold and not bequeathed of the south-east quarter of section 2. ” Taking this established corner as the true one, would leave just 100 acres, as we understand, remaining in the south-east quarter for plaintiff to take; and the establishment of this corner would tend to show that it was 100 acres, and no more, that he intended to devise to the plaintiff—that it W'as the quantity of land -which "would be given by the adoption of this corner, and not the larger quantity than that, which would be given by taking a different corner further north; that the devise was in view of the adopted corner, and that it was the intention in the devise that such adopted corner should be taken and held as for the true corner between the lands, and as carrying the area and quantity of land which would thereby be given. It is the intention of the testator, we think, that should control in finding what was the particular land which passed under the description he used.

The fifth proposition laid down by "Vice Chancellor Wigkam in his treatise on the rules of law respecting the admission of extrinsic evidence in aid of the interpretation of wills, is as follows: “For the purpose of determining the object of the testator’s bounty, or the subject of disposition, or the quantity intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same, it is conceived, is true of every other disputed point respecting which it can be shown that a knowledge of extrinsic facts can in any way be made auxiliary to the right interpretation of a testator’s words.” Wigram on Wills, 142.

For error in the exclusion of this testimony the judgment will be reversed and the cause remanded.

Judgment reversed,.


text:
    Michael Moriarty v. Thomas A. Galt.

      Filed at Ottawa November 17, 1884.

    1. Homestead—whether subject to judgment lien—and to sale on execution—rights of purchaser of the premises. Where the premises occupied by a debtor entitled to a homestead estate therein, exceed iu value $1000, all in excess of that value is liable to levy and sale on execution; and when a part of the premises, of that value, is set apart to him in the manner provided by law, his estate of homestead or exemption will be confined to the part so set off to him, and the residue being left free from the exemption, may be sold on execution against him. The same rule applies to his grantee purchasing after a judgment against him becomes a lien on the excess of value above the exemption.
    2. So where a judgment has become a lien upon any portion of a lot occupied by the debtor as a homestead, when the premises exceed $1000 in value, a sale by the debtor of his interest in the property can not diyest such lien and defeat the rights of the judgment creditor, and such lien may be enforced at any time within seven years from the date of the judgment.
    3. But when the premises so occupied by the debtor with his family as a homestead are not worth more than $1000, the lien of a judgment against him does not attach to the property at all while it is so occupied; and in such case the debtor may sell and convey the same free from any lien of the judgment.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    This was a bill in chancery, by Thomas A. Galt, against Michael Moriarty, and Thomas S. Beach, sheriff of Whiteside county, in which it is alleged that in 1855 William Mooney purchased lot 1, block 44, west of Broadway, in the city of Sterling, Whiteside county, and from thence hitherto has occupied the same as his homestead, he being the head of a family, and residing with them during all that time; that in 1858 Michael Moriarty recovered a judgment against said Mooney, in the circuit court, for a sum not known, upon which an execution issued, which was never levied. This judgment was revived in June, 1878, by an action of debt, and an execution thereon was sued out on July 1, 1878, which was returned no property found. Moriarty, on February 23,* 1883, had an alias execution issued upon said judgment, and put in the hands of said Beach, as sheriff, to execute. On April 18, 1883, Beach, in pursuance of the statute, set apart to Mooney, as his homestead, the west fifty-five feet of said lot, and levied the execution upon the forty feet of said lot next east of said fifty-five feet, and advertised the same for sale on the 11th day of May, 1883. Some time prior to 1879, Bichard L. Mangan recovered a judgment against said Mooney, and in pursuance of the statute caused to be set apart to Mooney, as his homestead, the west ninety-five feet of the same lot, and subjected the balance of such lot to the payment of his judgment. On April 12, 1883, Mooney and wife sold and conveyed, by warranty deed, said lot 1 to Thomas A. Galt, the complainant, and the deed was recorded April 13, 1883, prior to the proceeding under the execution in favor of Moriarty. Galt became vested with the title to said lot 1 subsequent to the levy and sale under the Mangan judgment and execution, and prior to the proceedings under the execution in favor of Moriarty. The interest of Mooney in the west ninety-five feet of the lot was never disturbed until after complainant became the purchaser and owner of the same. The bill also alleged that if a sale was made under the said execution, it would place a cloud upon the complainant’s title, and prayed for an injunction to prevent the making of such sale, and for other relief. Moriarty answered, admitting that Mooney was a householder on. August 18, 1858,—the head of a family, residing with the same on said premises, and so continued'until complainant’s bill was filed; and states that he obtained a judgment against Mooney on that day, in the county court— not in the circuit court; admits that an execution was issued thereon, but no levy was made under the same; admits that he obtained a judgment in an action of debt at the June term, A. D. 1878, of the circuit court, but denies that said judgment in debt was a revival of the judgment obtained in August, 1858; avers that it was a new, separate and distinct judgment ; admits that he caused an execution to issue on said judgment, as charged, and that Beach, in pursuance of the statute, set apart to said Mooney, as his homestead, the west fifty-five feet of said lot Í, and under and by virtue of an execution issued on said judgment on February 23, 1883, levied upon the forty feet of said lot next east of said fifty-five feet, and had advertised the same for sale; admits the allegations in the bill as to the proceedings under the execution issued upon the Mangan judgment, and the sale and conveyance of the east forty feet of said lot. Moriarty, in his answer, further stated that' on said ninety-five feet, at the date of said levy, were situated two dwelling houses of great value, to-wit, $1000, to remain on said lot, if used, possessed and enjoyed in connection with said lot; that the judgment of Moriarty, obtained July 1,1878, was, on the 23d day of February, 1883, and so continued to be up to and including the 18th day of April, 1883, a valid and first lien on the west ninety-five feet of said lot over and above the value of $1000, which was the homestead exemption estate of said Mooney in said west ninety-five feet; that the value of said west ninety-five feet was, on February 23,1883, and so continued up to and including the 18th day of April, 1883, greatly in excess of $1000,— to-wit, $2500,—and its value being in excess of $1000, said judgment was a lien on said west ninety-five feet over and above the value of $1000, and that Galt took said west ninety-five feet charged with said prior judgment lien of defendant, Moriarty. The answer of Beach, the sheriff, alleges the value of said west ninety-five feet to be greatly in excess of $1000, and sets up the proceedings had by him to set off to said Mooney his homestead of the value of $1000, including the dwelling house.
    It was stipulated that the facts were as stated in the answer of Moriarty, with the following in addition, to-wit: April 18, 1883, the sheriff, on the Moriarty judgment of 1878, called three householders to appraise the west ninety-five feet of said lot 1. The appraisers set off the west fifty-five feet of said ninety-five feet for a homestead, and the balance (forty feet) was levied upon. Mooney and wife sold their interest in lot 1 to Galt for the expressed consideration of $2000, giving a warranty deed, reserving buildings and movable implements thereon,—deed recorded April 13, 1883. The statement of defendant, Moriarty, in reference to the lien of his judgment on the excess in value of said west ninety-five feet over and above $1000, is a claim of right by defendant, and not admitted as a fact by complainant. This was all the evidence heard.

      The court granted the relief prayed for, and enjoined the sale of that part of the lot not set off to Mooney. This decree, on appeal, was affirmed by the Appellate Court, and Moriarty brings the ease to this court on his further appeal.
    Messrs. J. & J. Dinsmoor, for the appellant.
    Messrs. Manahan & Ward, and Mr. C. J. Johnson, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

The judgment in favor of Moriarty, and against Mooney, was recovered on July 1, 1878, and an execution was issued thereon within one year thereafter, and returned no property found. On February 18, 1883, an alias execution was issued and placed in the hands of the sheriff. On April 12, 1883, Mooney sold his homestead premises to the complainant, Galt, for $2000, reserving therefrom the buildings on the premises. On April 18, 1883, the sheriff summoned three householders, (Mooney still being in the possession of said premises,) and had the same appraised, and a homestead of $1000 in value was set off to him, and a levy made upon the balance. The question is presented for our determination whether the premises, or any part thereof, were subject to levy and sale after they had been sold by the judgment debtor,— or, in other words, whether a judgment becomes a lien upon any portion of property occupied by a debtor and his family as a homestead, where it exceeds in value $1000. If the judgment in this case became a lien upon any part of the lot in controversy, it is evident that any sale by the debtor of his interest in the property could not divest such lien and defeat the rights of the judgment creditor, and such lien may be enforced at any time within seven years, as against a purchaser from the judgment debtor.

Under the decisions of this court, where the lot of ground, with its improvements, is not worth more than $1000, the lien of a judgment does not attach to the property unless it is abandoned as a homestead. In such case there is nothing subject to forced sale upon which any lien can attach, and the debtor may sell and convey the same free from any lien of the judgment against him. Green v. Marks et al. 25 Ill. 221; Hume v. Gossett, 43 id. 297; Wiggins v. Chance, 54 id. 175; Hubbell v. Canady, 58 id. 425; Kingman v. Higgins, 100 id. 319; Hartman v. Schultz, 101 id. 437; Bliss v. Clark, 39 id. 590; Haworth v. Travis et al. 67 id. 301; Stubblefield v. Graves, 50 id. 103.

But it seems plain, from the language of the statute, that the debtor’s estate of homestead is limited in extent to the value of $1000. Section 1, of chapter 52, reads: “That every householder having a family shall be entitled to an estate of homestead to the extent in value of $1000, in the farm or lot of land, and the buildings thereon, owned or rightfully possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, ” etc. If the property in which this estate or exemption exists exceeds in value $1000, the excess is not exempt from lien, levy and sale, and it is liable to the same lien of judgments, etc., and to be aliened in the same manner as other property of the debtor. (Eldridge v. Bierce et al. 90 Ill. 474; Haworth v. Travis et al. 67 id. 301; Stubblefield v. Graves, 50 id. 103.) In this case the value of the lot in which the debtor’s estate of homestead was included, exceeded $1000,—the limit of such estate. As to $1000 of the lot, the judgment created no lien, and could not be enforced; but as to the excess in value, the property was liable to be levied upon and sold at any time during the existence of the lien of such judgment, and when a part of the lot of the value of $1000 was set apart, as provided by law, to the debtor, his estate of homestead became fixed, and confined to the portion so set apart, leaving the residue entirely free from the estate and the exemption.

We think the circuit court erred in perpetually enjoining the sale of that part of the lot not set apart to the debtor as his homestead, and hold that it was liable to levy and sale, even as against the grantee of such debtor, and that the Appellate Court erred in affirming the decree of the circuit court. The judgment of the Appellate Court is reversed, and the cause remanded, with directions to reverse the decree of the circuit court, and remand the cause to that court .for further proceedings in conformity with the views here expressed.

Judgment reversed.


text:
    The South Park Commissioners v. Samuel E. Todd.

      Filed at Ottawa November 17, 1884.

    1. Eminent domain—disposition of condemnation money where the person entitled is a non-resident, or unknown. Where the person entitled to receive the compensation awarded in a proceeding to condemn land for a public use, is not known, or is a non-resident, the money should be paid into the county treasury for the use of the owner or person entitled thereto, and if it is paid over to one not entitled to it, the courts will compel its payment again in favor of the rightful claimant. The commissioners awarding the compensation have no authority to determine to whom the money shall be paid.
    2. Same—right to condemnation money as between the owner and his mortgagee. Where the property of a mortgagor is condemned for public use, and the compensation to be paid is assessed, the mortgagee or holder of the mortgage debt will be entitled to be first paid out of it the amount due him, and the mortgagor the balance.
    3. Same—estoppel to deny ownership of land taken. Where park commissioners proceed to condemn land for park purposes, as the property of a person named as the owner in the petition, the commissioners will be estopped from afterwards disputing his title, in the absence of any adverse claimant of the condemnation money, and more especially so when such alleged owner’s title is-not put in issue in the suit to recover such money.
    4. Practice—time to object to want of proof of title in mortgagee, on foreclosure. A mortgagor’s deed misdescribed one of the parcels of land intended to be conveyed, and the same was condemned for public use by park commissioners, by its proper description. On bill to ’foreclose the mortgage, the commissioners impliedly admitted that the legal title was in the mortgagee, and a decree of foreclosure was entered: Held, that as the objection to want of proof of title in the mortgagee was not made in the court below, so as to afford an opportunity of showing the mistake, it was waived, and could not be urged on appeal or error.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. Jesse B. Barton, for the appellant:
    The description of the property conveyed to Mrs. Pierce is, lots 1 and 2, block 1, and lot 1, block 2, while the mortgage describes the latter lot as lot 2, block 2, and hence the mortgagee had no title in either lot 1 or lot 2, in block 2. The award covered the lots first above named.
    There is no evidence that the park authorities received any notice whatever of the mortgage before the payment of the award to Baker, only that Mr. Hurd states that on or soon after October 20, he took the bond and mortgage to Gage, and showed them to him, which does not seem to have been done at any board meeting, and notice to Gage, who was only an individual member of the board, clothed with no more authority than any other member, was not notice to the board. Paley on Agency, 266; Dillon on Mun. Corp. sec. 176, note 2.
    Mr. Ullman Strong, for the appellee:
    The park commissioners could not lawfully occupy the premises condemned until the assessment of damages was paid to the rightful person. Cook v. South Park Commissioners, 61 Ill. 120; People v. Williams, 51 id. 63; Railroad Co. v. Hopkins, 90 id. 321; Railroad Co. v. Teters, 68 id. 144.

      A decision by the commissioners on ex parte testimony, without notice, is not binding on the parties in interest. Railroad Co. v. Prussing, 96 Ill. 204; Railroad Co. v. Laurie, 63 id. 267.
    Having no power to decide to whom to pay the award, the commissioners should have paid it into the county treasury.
    Appellee was entitled to so much of the award as was due on his mortgage, whether appellant had notice of the mortgage or not. Jones on Mortgages, (3d ed.) secs. 681 a, 708, and note; Colehour v. State Savings Institution, 90 Ill. 152.
    The objection that the ownership in Mrs. Pierce was not proved, comes too late, if that question is material; but appellant, having found the title in her, and described her as owner in the petition, is estopped from denying her ownership. Railroad Co. v. Laurie, 63 Ill. 264.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a decree of the circuit court of Cook county, rendered in a foreclosure proceeding in favor of the appellee, Samuel E. Todd, and against the South Park Commissioners, the appellant, for the sum of $1670.

The facts, so far as essential to a decision of the legal questions involved, are, in substance, these: On the 17th of October, 1870, Mary E. Pierce, being the owner in fee of lots 1 and 2, block 1, and lot 2, block 2, in Dickinson’s subdivision, in Cook county, conveyed the same, by way of mortgage, to secure a loan of money. The parties to the transaction were all non-residents. The mortgage, together with the evidence of the mortgage debt, was placed in the hands of Harvey B. Hurd, shortly after its execution, as the attorney for Todd. Hurd was also acting as agent of the lots for Mrs. Pierce, and was trying to sell them to pay off the mortgage indebtedness. During the same year, the South Park Commissioners commenced proceedings under the Eminent Domain act, to condemn these lots, with others, for park purposes, Mrs. Pierce appearing at the time to be the owner of record, as she really was, subject to Todd’s mortgage. Prior to the commencement of these proceedings, Hurd, knowing the lots would be wanted by the park commissioners, applied to them and tried to dispose of them by private sale, but the commissioners declined to purchase them, on the ground the price asked by her (namely, $3000,) was too much. ' The commissioners, however, told him that they would notify him when proceedings to condemn were instituted. This they failed to do, and neither Hurd nor Mrs. Pierce had any actual knowledge of the proceedings to condemn until after the report of the commissioners was in. It appears from the report, which was filed-the 8th of October, 1870, that a claim to the condemnation money for these lots was interposed before the commissioners by Edward L. Baker, as assignee of A. G-. Pierce & Co., and that the same was allowed by the commissioners and paid by the appellant.

The hearing upon this claim of Baker seems to have been purely an ex parte affair, and the evidence before us shows the claim itself was not well founded; but even if it had been, the commissioners had no authority to adjudicate upon a question of that kind. Their duty was simply to assess the damages or amount of compensation the owner of the lot was entitled to, leaving the settlement of that question to some other tribunal. Tested by the public record, the condemnation money prima facie belonged to Mrs. Pierce, the mortgage not having been put on record, although the weight of evidence shows the appellant had actual notice of its existence. But under the law as it then stood, Mrs. Pierce, as well as Todd, being non-residents, the appellant should have paid the money into the county treasury for the use of the owner, whoever that might be, which, of course, as between Mrs. Pierce and Todd, belonged to the latter, to the extent of the mortgage debt. This money having been paid over to Baker without authority of law, and in derogation of Todd’s rights, the latter is not hound by it, and the circuit court properly held that appellant must pay it again.

The decree, however, is attacked on several grounds,— first, because, as is alleged, “there is no proof that appellee has, or had, any interest in lot 1, block 2, which the award covered.” This objection is based upon the fact that it was developed on the trial that the lot in block 2 was improperly described in the deed through which Mrs. Pierce claims, as lot 1, block 2, when it should have been described as lot 2, block 2. Under the facts in this case the point is not tenable. The bill properly describes the lot. The answer, by implication, admits the legal title was in Mrs. Pierce, but denies she had any beneficial interest in it. Under the implied admission in the answer it may be questionable whether complainant was bound to make any other or further proof on that point; but be that as it may, upon the whole record we think it sufficiently appears that lot 2, block 2, (the property described in the bill,) is the same lot involved in the condemnation proceedings, and on account of which the award to Mrs. Pierce of $1547.92 was in part made, and as to the other lot there -is no controversy. We do not think appellant, after having proceeded against this lot as the property of Mrs. Pierce, and taken possession of it as they did, ought to be now permitted to question the fact of the legal title being in her, in the absence of any adverse' claimant. If it were permissible to question her title at all in the present proceeding, it should have been done in the circuit court, so as to have afforded an opportunity to obviate the objection. The point should there, have been made that the deed in question did not properly describe the property. Had that been done, the complainant would have had an opportunity of offering other evidence of title, if he had any, and if he had not, he might, by supplemental bill, without any considerable delay, have had the mistake in the deed, as it evidently was, corrected. It would have been but an act of simple justice and fair dealing to have called attention to the variance at the time, if there was any intention of relying upon it; and if purposely waived, then the party should be estopped from afterwards raising the question, especially in an appellate tribunal.

The second point made by appellant is, that there “was not sufficient proof of ownership in Mrs. Pierce.” What we have already said is a sufficient answer to this objection, and need not -be repeated.

The two other reasons assigned why the decree should have been reversed by the Appellate Court, are so clearly without force as to require no special notice.

The judgment will be affirmed.

Judgment affirmed.