text:
    The City of East St. Louis v. Charles W. Thomas.

      Filed at Mt. Vernon March 29, 1882.

    1. Default—of the diligence to set aside. A judgment by default against a plaintiff on a plea of set-off, for want of a replication thereto, and joinder on the general issue, when the case is called for trial, will not be set aside, when the action has been pending a long time, on the ground that plaintiff’s attorney could not find the papers in their proper place, and was mistaken as to the day the case was set for call on the docket. In such case, without any application to the clerk for the papers, there is no excuse for the failure to traverse or reply to the pleas.
    2. Pbactice—jury to try issue—on default. The calling of a jury to “try the issue” in a cause, when no issue has been joined, and the plaintiff has been defaulted for want of a replication to a plea of set-off, if an error, is a mere formal one, from which the plaintiff could not, in any event, be injured, and is therefore no ground of reversal.
    3. Same—right of plaintiff to dismiss after plea of set-off is interposed. The provision in the statute that after a plea of set-off has been filed the plaintiff shall not be permitted to dismiss his suit without the consent of the defendant, or “leave of court,” implies that leave of court is not to be given to dismiss, except for cause shown.
    4. Same—on failure of plaintiff to reply to plea of set-off. Where no joinder is taken on the plea of the general issue, or replication filed to a plea of set-off, when the case is called for trial, and the plaintiff fails to appear, the better practice is to enter judgment in bar of the plaintiff’s action for want of the joinder, and call a jury to assess the defendant’s damages under the plea of set-off.
    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. William H. Snydeb, Judge, presiding."
    An action of assumpsit was "begun in the City Court of East St. Louis, to the March term thereof, in 1880, by the appellant against appellee, and on the 15th of May, 1880, an alias summons was issued and served upon the defendant, claiming damages in the sum of $2000, and returnable on the first Monday of June, 1880. At the August term, 1880, on motion of defendant, the venue was changed to the circuit court of St. Clair county. A transcript of the proceedings in the cause in the City Court of East St. Louis,, duly authenticated by certificate of the clerk thereof, with the papers in the case, were filed in the office of the clerk of the circuit court of St. Clair county, on the 2d day of February, 1881, and the cause placed on the docket of that court. Among the papers thus filed with the clerk of the circuit court on February 2, 1881, was a declaration in the cause (filed January 26, 1881, in the office of the clerk of the City Court of East St. Louis,) by plaintiff, and against defendant, claiming damages in the amount of $2000. This declaration contained merely what are called ■ the common counts in assumpsit, and was signed “M. Millard, attorney for plaintiff, ” and was entitled of the March term, 1880, of the City Court of East St. Louis.
    On March 1, 1881, the defendant filed with the clerk of the circuit court two pleas:—first, the general issue concluding to the country; and second, a plea of set-off for professional services as attorney at law for defendant, claiming damages at $4000, and offering to set-off and allow to plaintiff out of said sum of $4000 “the full amount of plaintiff’s damages.” At the same term, by order of court, the cause was, on the 4th of May, 1881, continued until the next term. The next term began on May 16th, being the third Monday of that month.
    At the May term, 1881, and on the sixth Monday of that term, being the 20tli day of June, 1881, the cause was called for trial. Plaintiff had neither joined issue on the plea of non-assumpsit, nor filed any replication to defendant’s plea of set-off. The plaintiff being called, came not, and no attorney appeared at that time or answered for the plaintiff.
    A standing rule of that court, adopted at the September term, 18T9, and still in force, required that all pleas in law cases going to plaintiff’s declaration must be filed on or before the meeting of the court on the first Thursday of the term, and on failure to comply with this rule default may be entered; and that all demurrers, etc., to defendant’s pleas must be filed by the -meeting of the court, by the second day after such plea is filed,' and this rule shall be applied, as near as may be, to all subsequent pleadings. Any demurrer, etc., filed beyond the limits of this rule, without leave of court, may be stricken from the files, or treated as waived, as the court may determine.
    In this condition of affairs the court, on motion of defendant, entered judgment by default against the plaintiff for want of replication to the plea of set-off, and awarded a writ of inquiry to ascertain defendant’s damages upon that plea, and the-record says: “This cause, and said writ of inquiry, thereupon coming on to be tried and executed, the court, on motion of defendant, ordered a jury. ” The jury was sworn to “try the issues in this cause, and assess defendant’s damages ” under the plea of set-off. The verdict returned was : “We, the jury, find the issues for the defendant, and assess the defendant’s damages on said writ at $1027.” Judgment was thereupon entered upon the verdict, that the defendant recover of plaintiff his damages thus assessed at $1027, and his costs to be taxed.
    Afterwards, at the same term, and on the next day after the entry of the judgment, plaintiff, by B. H. Canby, its attorney, moved the court to set aside the default and judgment so entered on defendant’s plea of set-off, and to set aside the verdict and judgment thereon, and grant to plaintiff a new trial. Said motion was in writing, with apt reasons assigned. Plaintiff, in support of these motions, produced to the court the affidavit of Mr. Canby, sworn to June 21, 1881, stating, in substance, that he was first employed in the cause by plaintiff at the commencement of the (then) present term; that at the first of the term he looked for the files in the cause at the place where, by its number on the docket, they should be, and failed to find them; that he diligently searched “among all the files of the present term, and could not find the papers in this cause; that he continued to look for said papers, every day or two, among the files of the court, from the beginning of the term up to the morning of Friday, June 17, 1881, which was the last day of court before the day on which the judgment in this cause was rendered, ” and failed to find them; that he did not, and under the circumstances could not, know that a plea of set-off was on file unanswered; that by mistake “he got the setting of this cause for Wednes-. day, June 22, 1881; that he was present in court on June 20, 1881, until noon; that up to that hour the case had not been called for trial, and that then he left court and went to his home in East St. Louis, fully believing, and having no doubt, that the ease was set for trial on Wednesday, June 22, 1881, when he intended to be present and make proper defence thereto,—it was only by reason of this mistake about the setting of the cause that the default occurred. The affidavit further states that plaintiff has a good and meritorious defence to said plea, of set-off; that affiant expects to prove that plaintiff is not indebted to defendant in any sum whatever, on account of matters mentioned in that plea; that plaintiff has paid defendant about $1800, in full for all services rendered- by him and mentioned in that plea.
    The court overruled the motions of plaintiff, and refused in any way to disturb the verdict and judgment thus entered, and plaintiff then and there excepted to the rulings of the court in this respect. Plaintiff appealed to the Appellate Court, where the judgment was duly affirmed. Plaintiff brings the ease to this court on appeal, and seeks to reverse that judgment.
    Mr. B. H. Canby, for the appellant.
    Mr. A. S. Wildbbman, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

We find in this record no sufficient cause to disturb the judgment. It is strenuously insisted that the circuit court erred in refusing to set aside the default entered for want of a replication to defendant’s plea of set-off. We think the affidavit in support of the motion fails to show due diligence. The action was originally that of appellant. It must be taken that it was known to plaintiff’s attorney that the declaration had been filed. He supposed the case was to be tried on the 22d of June. It was his duty to have the issues made up before that time. The case had long been pending. When he failed to find the papers, as he states, upon search at the commencement of that term (on May 16th), and on the divers occasions, .“every day or two, ” on which he searched, up to the 17th of June, when he made his last search, it is plain that due diligence required him to make application to the clerk for the papers. While the clerk may have a general plan for keeping the papers pertaining to causes in court, known to the bar, it often occurs, and is always liable to occur, that papers which are not lost or mislaid are elsewhere than the usual place, and are still in the custody of the clerk, ready to be produced when needed. The failure to find the papers, when no application was made to the clerk to produce them, is no excuse whatever for the failure to traverse or reply to the plea.

It is contended, also, that it was error to call a jury to try the issue in the cause, when no issue had been joined. If this be error at all, it is error in a mere matter of form, by which appellant could not, in any event, be injured. The plea of non-assumpsit,—tendering an issue,—remained unanswered by plaintiff, no formal joinder of the issue having been filed by plaintiff. The plea of set-off, alleging an indebtedness by plaintiff in an amount greater than the demand of plaintiff, was on file, and not answered. The cause, in this condition, was called in its regular order for trial. By section 31 of our Practice act, (Rev. Stat. 1874, p. 778,) it is enacted, that when a plea of set-off “shall have been interposed, the plaintiff shall not be permitted to dismiss his suit without the consent of the defendant, or leave of court. ” This implies that leave of court is not to be given to dismiss, under such circumstances, except for cause shown. When this ease was called the plaintiff did not appear,—did not ask leave to dismiss. Judgment by default might, no doubt, have been entered in bar of plaintiff’s action, for want of joinder in the issue tendered by the plea of non-assumpsit, and a jury might have been called merely to assess full damages to defendant under his plea of set-off, on which judgment by default had been entered. This, perhaps, would have been a more artistic mode of reaching the result. Appellant can not complain that a course more favorable to him was in fact pursued. The issue tendered by the plea of nonassumpsit was treated as joined, and it was submitted to a jury. At the worst, the jury could in that regard say no more against the plaintiff than the court ought to have adjudged without the jury,—that is, that plaintiff had no cause of action, as alleged in the declaration. In fact, it kept the door open to give to plaintiff, under that issue, the benefit of any testimony which might be brought out in plaintiff’s favor in the assessment of damages under the plea of set-off. It is obvious plaintiff could in no event be injured by this departure from the strict mode of procedure, but might be benéfited. The plaintiff, for some reason, has chosen to embody in the bill of exceptions all the evidence given to the jury. Looking into that, it is seen that this departure from the more artistic mode did redound to the benefit of plaintiff, for it there appears that the damages for defendant assessed in the verdict, are not the whole amount of defendant’s demand proved, but merely the excess of that demand over plaintiff’s demand.

We find no ground calling for a reversal of this judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    John B. Bowman et al. v. The Venice and Carondelet Railway Company.

      Filed at Mt. Vernon January 18, 1882

      Rehearing denied May Term, 1882.

    1. Instruction—whether it excludes admissions of counsel or parties. An instruction to the jury in a proceeding to condemn land for right of way, in which a cross-petition was filed claiming damages to other lands, where, on the trial, it was admitted that the cross-petitioner had title to a portion .of the land, and also that his grantors had good title to another portion of the land in question, that “statements of counsel or parties not made under oath, or made as admissions, are not evidence, and are not to be regarded as such by the jury in making up their verdict,” is not liable to the objection that it excludes such admissions from the consideration of the jury.
    2. Eminent domain—condemnation of right of way'.for railroad—in case of several owners of the same land—of proceeding against all or a part. In a proceeding to condemn land under the Eminent Domain act, where the land to be affected by it belongs to two or more as tenants in common, it is not essential to the jurisdiction of the court that all the owners shall be brought into court, but the court has power to hear and determine the case as to those before it.
    3. If the rights of one, in any sense, should depend upon the disposition of the case as to the others, then each party in interest would have the right to insist on all the parties being before the court before proceeding to a trial.
    4. Where several tracts of land belonging to different persons are included in the same petition, the statute provides that the compensation for each shall be assessed separately, by the same or different juries, as the court or judge may direct, and the same principle may be extended to cases where different persons have several and distinct interests in the same tract.
    5. Same—of the petition—sufficiency as to inability to agree with owner. An averment in a petition for the condemnation of land for right of way, “that the petitioner has been unable to acquire the right of way from said owners, by voluntary grant or purchase, ” is a substantial compliance with the statute, as showing that the compensation to be paid could not be agreed upon by the parties.
    6. Same—right of way may embrace more than 100 feet in width. Under our statute the amount of land which a railroad company is allowed to take for right of way, is measured by the necessities of the case only, and is not limited to a strip 100 feet wide. Where the petition states the amount of land necessary for the road, and such allegation is not controverted, no question can arise as to whether more land is sought to be taken than is necessary.
    7. Same—proceedings in term time and vacation—court is always open for proceedings to condemn. The condemnation of private property for public use being a judicial proceeding, it can only be instituted and prosecuted to a final determination in either the circuit or county court, and hence, whether commenced in vacation or term time, it is equally a proceeding in court. Under the statute, the circuit and county courts are always open for proceedings to condemn for right of way.
    8. Same—allowing amendment of petition in vacation. Whether a proceeding to condemn land for public use has been commenced in term time or vacation, there is no impropriety in the judge allowing such amendments to be made as are by law allowable, as of course and of right, whether with or without notice, where the opposite party is not taken by surprise, or otherwise prejudiced. There is no error in allowing an amendment of the petition in vacation, making new parties as part owners of the land sought to be taken, and ordering a summons and publication against them.
    9. Assignment oe errob—by whom. A party is not permitted, in a court of review, to take advantage of an error that does not injuriously affect himself. None but the party affected thereby can urge such error as a ground of reversal.
    Appeal from the County Court of St. Clair county; the Hon. M. J. Dale, Judge, presiding.
    On the 17th day of November, 1880, and during term time, the Venice and Carondelet Railway Company filed in the county court of St. Clair county a petition, under the Eminent Domain act, against John B. Bowman, Frank B. Bowman, and Joseph L. Griswold, for the assessment of damages and right of way over certain lands lying near East St. Louis, in which the defendants, respectively, appeared of record to have an interest. Service was had upon the Bowmans, but not upon Griswold. On demurrer to the petition it was amended, under leave of the court. Appellants then moved the court to quash or continue the proceeding, on the ground there was no service upon or appearance by Griswold, which the court refused to do, and appellants excepted. Appellants then demurred to the amended petition, but the court overruled the demurrer, and the cause was submitted to a jury for trial, resulting in a verdict fixing John B. Bowman’s damages at $3062, and Frank B. Bowman’s at $437.50. On motion of appellants, this verdict was set aside, and a new trial granted, and leave was given petitioner to amend the petition by making new parties. The bill of exceptions, however, shows that while the order allowing the amendment of the petition appears upon its face to have been made in term time, yet in point of fact the record was so made up in pursuance of leave granted by the judge in vacation.
    On the 26th of January, 1881, in vacation, appellee filed an amended petition, making Phillip Hendrieh also a party, and at the same time filed an affidavit showing that Griswold and Hendrieh were non-residents, upon which petition the county judge indorsed an order directing publication to .be made as to Griswold and Hendrieh, which was accordingly done. At the March term, 1881, of the court, appellant John B. Bowman entered a motion to strike the amended petition of the 26th of January from the files, on the alleged ground that it had been filed without leave, and in violation of the rules of the court, which motion was overruled, and appellants excepted. John B. Bowman thereupon moved the court for a continuance of the cause, on the ground that his attorneys, by reason of being engaged in the circuit court then in session, were unable to be in attendance ; also upon the further ground that the applicant had important business in the circuit court himself, which required his personal attention; which motion was overruled, and exceptions taken. Appellants then moved the court to dismiss the proceeding as to part of the premises, on the ground that Griswold and Hendrieh were part owners and co-defendants, and not properly in court; which motion was also overruled, and an exception taken.
    Hendrieh entered a special appearance for the purposes of his motion, and moved the court to quash the writ and dismiss the proceeding as to him, on the ground that the amended petition making him a party was presented to a judge in vacation, and that the judge did not indorse thereon any time when he would hear- the same, and for the reason that, as to him, such proceedings as he had received notice of were to be had before a judge in vacation, and not before the court: This motion was also overruled, and an exception taken. Hendrich then entered a motion challenging the array of jurors, on the ground they were drawn from the regular panel for the March term of the court, and not selected under sec. 6, chap. 47, Bev. Stat., this and the preceding motion being supported by affidavit. The challenge was disallowed, and Hendrich excepted. Cross-petitions were filed by the Bowmans, but no further defence was made by Hendrich, and none at all by Griswold.
    The company answered the cross-petitions, denying all right to compensation on account of any supposed damages to the premises mentioned in cross-petitions, and the issues being thus made up, the cause was submitted to a jury, who reported, and awarded to John B. Bowman, as compensation for right of way, $875, and for damages to adjoining lands mentioned in cross-petition, $1200; to Frank B. Bowman and Phillip Hendrich, as compensation for right of way, $175, and nothing for damages to contiguous lands mentioned in cross^petition, and to Joseph L. Griswold, for right of way, $300. Motions for a new trial, and in arrest of judgment, were severally overruled, and exceptions taken, and thereupon the court entered several judgments against the company, in favor of the parties above mentioned, in the respective sums specified in the report and verdict of the jury, as first stated. John B. and Frank B. Bowman severally appealed- to this court, and the two appeals seem, by common consent, to be treated by counsel as one case.

      Mr. John B. Bowman, and Mr. Frank B. Bowman, for the appellants.
    Messrs. GL &. Gf. A. Kcerner, for the appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The points relied on for a reversal are arranged by appellants’ counsel under two heads: 1. Such as relate to the compensation fixed by the jury. 2. Such as are supposed to affect the jurisdiction of the court. We will consider them in the order named.

Petitioner, for the purposes of the trial, admitted the title of a portion of the lands in question to be in John B. Bowman, and also that his grantors had a good title to another portion; and it is claimed by appellants the damages awarded by the jury are too small, and that the smallness of the allowance was'Occasioned by an instruction given by the court, which caused the jury to disregard this admission by petitioner relating to the title of Bowman and his grantors. The instruction complained of is as follows:

“Statements of counsel or parties, not made under oath, or made as admissions, are not evidence, and are not to be regarded as such by the jury in making up their verdict.”

It is claimed that this instruction in effect told the jury they must disregard the admission in question, because it was not made under oath. We do not think the instruction is obnoxious to the objection taken to it. The object of the instruction was to exclude from the consideration of the jury the mere statements of counsel or parties which were neither sworn to nor admitted in evidence. So far from the instruction excluding the petitioner’s admission with respect to title, it is expressly excepted from its operation. Moreover, the verdict shows upon its face that the jury allowed some damages with respect to a portion of the lands embraced in the admission, which could not consistently have been done if the jury had understood the instruction, as is claimed they did. Whatever objections there may be to the instruction in question, we are very clear it could have worked appellants no injury upon the ground suggested.

The remaining points fall under the second head of appellants’ argument, and directly question the jurisdiction of the court below. It will not be necessary to notice them in. detail, as most of them rest substantially upon the same ground.

The position of appellants, as we understand them, is, that the proceeding in the present case is absolutely void, on the ground the court had no jurisdiction of the subject matter of the suit, or of the persons of Griswold and Hendrich; that so far as these two defendants are concerned the suit was commenced in vacation, to-wit: on the 26th of January, by filing the amended petition under which the case was finally tried; that the action having been commenced,. as to them, in vacation, all subsequent proceedings in it could only be done in vacation; that the trial having taken place and judgment rendered in term time, 'the whole proceeding is void, but that, conceding the case might, notwithstanding it was commenced in vacation, have been afterwards lawfully heard and determined in term time, the notice by publication not being in conformity with the statute was insufficient to give the court jurisdiction of their persons; and that the proceedings being void as to a part of the defendants, are void as to all. This last proposition is based upon the legal hypothesis that in a condemnation proceeding under the Eminent Domain act, where the lands to be affected by it belong to two or more as tenants in common, the court has no power or jurisdiction to hear and determine the case as to one without having the others before it also.

No authority has been cited in support of this position, . nor do we find any provision in the statute regulating the subject which in express terms sustains it, so that if the position is correct, it must rest upon the construction of the statute, or general principles applicable to a proceeding of this character. The second section of the Eminent Domain act requires the petitioner to set forth, among other things, a description of the property proposed to be taken, together with the names of all persons who appear of record to be interested therein, as owners or otherwise, “praying the compensation to be paid to the owner, to be assessed. ” However many parties in interest, the amount each one is entitled to receive as compensation must be assessed to each separately, unless the parties in interest require it otherwise. This may be all done by one jury and at the same time, but the question is, must it be so done ? If the rights of one were in any sense made to depend upon the disposition to be made of the case as to the others, we would have no hesitancy in holding that each party in interest would have the right to insist on all the parties being before the court before proceeding, but we are unable to perceive how, in any contingency, one of the parties could be affected by the determination of the ease as to the others. Under certain circumstances it might be very inconvenient, or even impossible, to try a case as to some of the-parties, when at the same time the most cogent reasons might exist for proceeding with it as to the others; and should the statute be so construed that the court, under such circumstances, would be powerless to take that course which the interest of all parties concerned manifestly requires, where such construction is not clearly and unequivocally demanded?

Where several tracts of land belonging to different persons are, as they may be, included in the same petition, the statute expressly provides the compensation for each shall be assessed separately by the same or different juries, as the court or judge may direct, and we see .no reason why the same principle should not be extended to cases where different persons have several and distinct interests in the same tract. In many instances that might readily he suggested, justice and convenience would he promoted by it, and we can conceive of no case in which any legal right could be prejudiced or impaired in the slightest degree by doing so. We are of opinion, therefore, where a party having an interest in a tract of land sought to be condemned for public use is regularly brought into court, and the petitioner is ready to try the case as to him, where no good reason appears why it should not be so tried the defendant in court is not entitled, as a matter of right, to have the case continued indefinitely, merely because there are other parties having an interest in the same land, whom the petitioner, from mistake or otherwise, has not been able to bring into court. It may be that the petitioner has good reasons for supposing he will be able to purchase the right of way from the parties not before the court, and thus avoid delay and the expense of another trial. But even if this were not so, and the petitioner is willing to run the risk of incurring the expense of another trial, and the court, under the circumstances, is of opinion that justice and convenience will be. promoted by trying the'case as to the parties before it, there will be no error in doing so.

It follows, therefore, it is wholly immaterial, so far as appellants are concerned, whether upon either of the grounds suggested Griswold and Hendrich were properly in court or not, for it is clear, if the conclusion first reached is correct, there is no question but that the court was fully authorized to hear and determine the case as to appellants, and however much error may have intervened as to the other defendants, it is a matter that in nowise affects appellants, and of which they can take no advantage in this court: for nothing is better settled than that one is not permitted in a court of review to take advantage of an error that does not injuriously affect himself. Smith v. Hickman, 68 Ill. 314; Short v. Raub, 81 id. 509; Robinson v. Brown, 82 id. 279; Tibbs v. Allen, 27 id. 119.

But it is further insisted that the amended petition of the 26th .of January having been filed without leave'of the court, it must be regarded as a new petition filed in vacation, and should therefore have been stricken from the files; that the original proceeding as against appellants having been commenced in term time, the judge had no authority in vacation to permit an amended petition to be filed, hence the leave granted by him was simply void. It is true the statute provides that applications for the condemnation of private property for public use may be made “to the judge of the circuit or county court, either in vacation or term time; ” but we do not attach the same importance to the two methods of commencing the proceeding that counsel do. If we understand the drift of their argument, they assume the act has provided two distinct forums, or tribunals, in which cases of this kind may be prosecuted, one being a court, and the other a judge, and that a suit having been commenced before one, can not, for any purpose, be regarded as pending before the other. This is not stated in so many words, but it is what seems to be the purport or effect of the argument. While the expression, “court or judge, ” which runs through most of the sections in the act, seems to give color to this view, and while the act unquestionably contemplates some diversity in the procedure depending upon whether it is commenced in term time or in vacation, nevertheless, the proceeding in either case must, in contemplation of law, be regarded as pending in court. The judge, as a mere individual, has no power to hear and determine any cause involving the exercise of judicial power, nor is it competent for the legislature to clothe him with it. The organic law of the State has disposed of the whole judicial power of the government by investing it in certain courts specifically mentioned in the constitution, and the legislature therefore has none to confer upon any one. It can only establish or provide, by appropriate legislation, for the organization of such courts as the constitution has expressly provided for, and when so organized or established, they derive their powers directly from the people, in their organized political capacity, through the constitution. Courts are political agencies—mere legal entities —established under the constitution for governmental purposes, and in contemplation of law have a separate existence distinct from the judges who preside over them; otherwise, when the judge of a court dies, the court itself would cease. A judge, therefore, has no judicial power outside of the court in which he officiates. He is the tangible, living oracle of the court. He speaks and acts for it, and in law is its only accredited agent. When discharging the judicial functions of his office, he is the court, in concrete form, and in this sense he is often called the court, but strictly and technically speaking, the judge and the court are wholly distinct. To every lawyer these general propositions are so palpably true, they require no illustrations or authorities to support them. The People v. Maynard, 14 Ill. 419; Field v. The People, 2 Scam. 181.

Inasmuch as the condemnation of private property for public use is, under our laws and constitution, essentially a judicial proceeding, it follows, from what we have already said, such a proceeding can only be instituted and conducted to its final determination in either the circuit or county court ; hence, whether instituted in vacation or term time, it is equally a proceeding in court, for upon that hypothesis alone can a proceeding of the kind conducted in vacation be sustained.

It is supposed the case of Haslam et al. v. Galena and Southern Wisconsin Railroad Co. 64 Ill. 353, is inconsistent • with the view here taken; but such is not the fact. The only point actually decided in that case, so far as it relates to the present inquiry, is, that where a condemnation case has been commenced in vacation, and the judge, as required by statute, fixes a day for the hearing, orders a special venire for a jury, and the same is issued by the clerk and made returnable on the same day, which happens to be in term time, the jury should, notwithstanding the time of hearing happens in term time, be selected from the special panel, unless subject to exception on other grounds, as was the case there. Nothing is to be found in that case that even intimates there was a want of jurisdiction in the court to hear and determine it in term time because it had been commenced in vacation, but on the contrary, the implication is clearly the other way. Under our statute the circuit and county courts are always open for proceedings of this character. The object of the legislature in so providing was to obviate delays detrimental to public interests, that often occur in legal proceedings when confined to term time. The only difference in proceeding in and out of term is, in the latter case the judge must fix a particular day -for the hearing, and order a special jury, and when such a jury has been summoned, if not subject to challenge on other grounds, it should serve in the trial of the cause. And whether the cause has been commenced in term time or vacation, we see no impropriety in the judge allowing such amendments to be made as are by law allowed, as of course and of right, whether with or without notice, where the opposite party is not taken by surprise, or otherwise prejudiced; and no complaint of that kind is urged here.

We are, therefore, of opinion there was no error in permitting the amended petition of the 26tli of January to be filed in vacation, making Hendrich a party, and ordering of a summons and publication. The court being open for proceedings of this kind, in vacation as well as term time, it is not perceived what good could have been subserved by delaying the proceeding until the meeting of the court in term time, for the purpose of entering an order which the petitioner would have been entitled to as a matter of course and of right. If notice is not required, as is conceded, in making an original application of this kind, there appears no good reason why it should he required in a suit already pending. We do not think there was error in permitting the amended petition to he filed, and making the order of publication, or in refusing to strike it from the files, because not made in term time.

It is also objected that the petition does not sufficiently allege, or the evidence prove, that the compensation to be paid for the property sought to be taken could not be agreed upon by the parties interested. The petition alleges “that the petitioner has been unable to acquire the right of way from said owners by voluntary grant or purchase. ” This averment is somewhat more comprehensive than the statute requires, but it clearly includes the statutory requirement; for if, as is alleged, the petitioner has been unable to acquire the property by purchase or grant (the only means by which the company could acquire it), it is quite evident the parties in interest could not agree on the amount of compensation. If the owners refused to sell altogether, that cut off all negotiations as to amount of compensation. We are of opinion the petition is a substantial compliance with the statute, and that it has been sufficiently proven. At least the jury so found, and we are unable to say the verdict is so clearly against the preponderance of evidence upon this point as to require a new trial.

It is further - insisted that this proceeding is invalid, because the strip of land sought to be condemned exceeds in width 100 feet, and the fourth clause of sec. 20, chap. 114, Bev. Stat., entitled “Bailroads and Warehouses, ” is relied on as sustaining that position. It provides the corporation shall have power “to lay out its road, not exceeding 100 feet in width, and to construct the same, and for the purpose of cuttings and embankments to take as much more land as is necessary for the proper construction and security of the railway. ” We see nothing in this provision to warrant the conclusion drawn from it. While it limits the width of the road to 100 feet, yet for the purposes of cuttings and embankments express authority is given to take as much more land as may be necessary for the proper construction and security of .the road; and by the third clause of the section every railway company is expressly empowered “to purchase, hold and use all such real estate and other property as may be necessary for the use and construction of its railway.” Taking these two provisions together, we think it quite clear the amount of land which the company is authorized to take is measured by the necessities of the case only. The petition expressly declares that the company “has located, and proposes to construct immediately, a portion of its railway, and for such purpose does now require” the land in question “as right of way. ” Admitting this question could be raised in a condemnation proceeding, of which we express no opinion, we find no evidence of its having been done on the trial in this case; and since the petition expressly charges the premises in question were required for right of way, and this allegation in the petition is not controverted, it is difficult to perceive upon what principle this court could say, as matter of law, they were not necessary. We are clearly of opinion this objection is not well taken.

Upon the whole, we perceive no substantial error in the record, and the judgment of the court below is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    John B. Bowman v. The Venice and Carondelet Railway Company.

      Filed at Mt. Vernon January 18, 1882

      Rehearing denied May Term, 1882.

    1. Eminent domain—jurisdiction im proceeding to condemn for right of way—continuance. Where service is had upon the land owner, but not ten days before the day set by the judge for the hearing of a petition presented in vacation to condemn land for a right of way, the service, though not in time for the purposes of a trial, will give the court jurisdiction of the person of the defendant, and the petition gives jurisdiction of the subject matter and of the person of the petitioner, and the court will have the power to continue the cause, and such a continuance will not abate the proceeding.
    2. Statutory proceeding—o/i7ie degree of strictness required. The rule which requires great strictness in a statutory proceeding, has application only in summary and ex parte cases, where the person whose rights are to be affected is not a party. It is not enough, to require the rigid rules of strictness, merely that the proceeding is a statutory one'. The rule does not apply to a proceeding to condemn land for right of way, under the statute.
    Writ of Error to the County Court of St. Clair county; the Hon. F. H. Pieper, Judge, presiding.
    Mr. Frank B. Bowman, for the plaintiff in error.
    Messrs. G. & G. A. Kcbbner, for the defendant in error.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an application to the county judge of St. Clair county, in vacation, for the purpose of inaugurating proceedings for the condemnation of a strip of ground as a right of way. The petition was presented on the 10th of June, 1881, and the judge indorsed thereon an order for a summons, returnable on the 24th of that _ month. It was returned served, on Booker, a co-defendant, on the 11th, and on plaintiff in error on the 15th of the month. On. the day set for trial Booker appeared, and as to him a trial was had; but plaintiff in error failed to appear, and the case was continued, as to him, until the 27th, at which time there was a trial in his absence, the jury assessing the damages for the right of way in his favor, at $50, on which there was rendered the usual statutory judgment. Afterwards, on the 7th of July, plaintiff in error went before the county judge, and moved, for various reasons, to set aside and vacate all of the proceedings in the case, but the motion was denied. He thereupon brings the case to this court on error, and urges a reversal.

The principal point relied on for a reversal is, that this being a special statutory proceeding requiring strict compliance with its provisions, inasmuch as plaintiff in error was not served with process ten, but only nine, days before the return day, the court never acquired jurisdiction of the person of plaintiff in error, and as to him the proceeding abated, and no further steps could be taken against him until a new petition was filed and new service had on him. It is claimed that there is no law authorizing a continuance in such a case, because service is .not had in time.

It will no doubt be conceded that had the proceedings been in term time a continuance might have been had. But the question is, whether it may in vacation. There would seem to be a necessity that there should be, to prevent great and useless delays. In fact, the statute manifestly contemplates continuances under some circumstances. The fifth section of the Eminent Domain act in terms permits amendments ; and when necessary, at any stage of the proceedings, to bring new parties into the case, the court or judge shall have power to make such rule or order as shall be reasonable and proper, and power to make all necessary rules and orders for notice of the pendency of the proceeding; to issue all process necessary to the execution of orders or judgments, as they may be entered. Many amendments must, of necessity, require continuances, and in a large number,- if not a majority, of cases, when a new party is brought into the case a continuance is necessary to procure service on the new party. If a jury can not be impannelect on the clay set for trial, there must of necessity be a continuance over, and so, if a Sunday intervenes before the close of the case. In all of these and other cases. a continuance is required, and the law sanctions it, that the administration of justice may not be defeated. Plaintiff in error was fully notified of the pendency of the proceeding, and its purpose, and he must have known that his co-defendant was served in time, and the notice to him would have been no more complete in a new proceeding than in that. A new proceeding and service would therefore have served no useful purpose. He should have obeyed the summons, or at least learned what order the judge had made as to him. There was the same necessity for a continuance in this as in other cases. It surely will not be contended that when an amendment or a new party is made that the proceeding shall abate, and the proceeding commence anew. To so hold would be to defeat the purpose of the statute. It would be as reasonable to hold that because service had not been had in time, the power of the court or judge over the matter had been exhausted, and no new proceeding could .be inaugurated, as to hold that because the service was not in time the power was lost in that case. Had it been so treated, and the petition refiled and new process issued and served, on the same principle we should have found plaintiff in error contending the statute had not authorized such a course, claiming that -the statute .had only -authorized a petition to be once filed, or a case to be but once commenced, whatever its fate. Such a position would be equally plausible, but as unfounded. The service, although not in time, gave the tribunal jurisdiction of the person, and the petition that of the subject matter and of the petitioner, and the court had ample power, and did not err in continuing the case as it did.

But it is urged with earnestness, that this being a statutory proceeding, great strictness is required. It is true it is a statutory proceeding, but it is not a summary ex parte proceeding, where the parties whose rights are to be affected have no opportunity to be heard. Applications for partition of lands, and the assignment of dower, and the action of replevin, are statutory, and yet no one thinks of insisting upon the strictness that is applied to ex parte proceedings. The fact that a proceeding is statutory is not enough to require the application of the rigid rules of strictness, but it only applies in summary and ex parte cases, where the person whose rights are to be affected is not a party. Such is not the case here, as owners and those having an interest are required not only to be made parties, but to be served with process.

The other questions urged were considered and determined in the case of Booker v. Venice and Carondelet Railway Co. 101 Ill. 333. Their discussion is, therefore, unnecessary in this case.

Perceiving no error in this record, the judgment of the court below is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon Mr. Justice Scholfield : Mr. Justice Mulkey :

text:
    John F. Rawlings v. The People of the State of Illinois.

      Filed at Springfield March 28, 1882.

    1. Appeae—in bastardy case—to what court. An appeal lies from the county court to the circuit court in a bastardy case, and not being a common law or criminal ease, no appeal lies from the county court to the Appellate Court.
    2. The sum which a defendant is condemned to pay in a bastardy case, is so much in the nature of a penalty as not to be included in the class of cases not appealable from the Appellate Court to this court, where the amount involved is less than $1000.

      3. Bastardy—a civil, not a criminal proceeding. A prosecution under the Bastardy act is a civil and not a criminal proceeding. Though in form criminal, it is essentially of the nature of a civil action, the object being, not the imposition of a penalty, for an immoral act, but merely to compel the putative father to contribute to the support of his illegitimate child.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county.
    Mr. Ira J. Bloomfield, and Mr. Benj. D. Lucas, for the plaintiff in error:
    A writ of error lies to the Supreme Court from the decisions of the Appellate Court in bastardy cases. Baber v. Pittsburg, Cincinnati and St. Louis R. R. Co. 93 Ill. 342.
    Bastardy is not a criminal proceeding, but at most only quasi criminal, and is not affected by the statute of 1879 relating to appeals in criminal cases. Wiggins v. City of Chicago, 68 Ill. 372.
    Mr. H. G-. Beeves, for the People:
    If this is a civil proceeding, so far as the writ of error is concerned, as is argued by counsel for plaintiff in error, then we say that the judgment of the Appellate Court is final, (see. 8, Appellate Court act,) and no appeal can be taken and no writ of error can be prosecuted therefrom. If it is a criminal proceeding, then the judgment of the Appellate Court was correct, for it is not disputed that if criminal, the case goes from the county court to the Appellate Court.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Proceedings under the Bastardy act were-instituted against John E. Bawlings, in the county court of McLean county, which, on trial at the December term, 1879, resulted in a verdict against the defendant. Judgment was rendered accordingly, and an appeal prayed to the circuit court of McLean county. The appeal was perfected, but at the April term, 1880, of the circuit court, on motion of the People, the appeal was dismissed, on the ground that the appeal lay to the Appellate Court, and not to the circuit court. This order of dismissal, on appeal to the Appellate Court for the Third District, was affirmed, and Eawlings sued out this writ of error.

The question presented by this record is, whether an appeal in bastardy cases lies from the county court to the circuit court.

Under the Eevised Statutes of 1874, an appeal lies from the county court to the circuit court in such cases. (Eev. Stat. 1874, secs. 187, 188, p. 344.) We have so held in numerous cases. Holcomb v. The People, 79 Ill. 409 ; Lewis v. The People, 82 id. 104; Stanley v. The People, 84 id. 212; Hauskins v. The People, 82 id. 193. These decisions must control, unless the statute has since been changed.

The act of 1877, creating the Apj>ellate Court, does not confer upon it jurisdiction of appeals from the county court, but only from the circuit and city courts, and the Superior Court of Cook county. (Laws 1877, see. 8, p. 69.) The proceeding being a statutory and not a common law proceeding, is not embraced in the provision in the act of 1877 giving appeals from the judgments of the county court to the Appellate Court in certain cases, as that only provides for appeals “in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and cases of forcible detainer, and forcible entry and detainer, ” and in certain criminal cases. (Laws 1877, p. 77.) And a prosecution under the Bastardy act being a civil and not a criminal proceeding, it is not embraced in the statute of 1879, (Laws 1879, sec. 88, p. 222,) relating to appeals in criminal cases, which provides that in all criminal eases below the grade of felony, the appeal from the county court shall be taken directly to the Appellate Court.

It is well settled by the decisions of this court that a prosecution under the Bastardy act is a civil and not a criminal proceeding; that though in form criminal, it is essentially of the nature of a civil action, the object being, not the imposition of a penalty for an immoral act, but merely to compel the putative father to contribute to the support of his illegitimate child. The question has been presented before the court in various aspects, and whenever called upon to determine to which class the proceeding belonged, the court has ever held it to be a civil and not a criminal proceeding. Mann v. People, 35 Ill. 467; Pease v. Hubbard, 37 id. 257; Maloney v. People, 38 id. 62; People v. Noxon, 40 id. 30; Allison v. People, 45 id. 37; People v. Starr, 50 id. 52; McCoy v. People, 71 id. Ill. The above cited are all the acts we are aware of bearing upon the subject.

An appeal, then, lying in this class of cases from the county court to the circuit court, under the Revised Statutes of 1874, and not finding that such right of appeal has been taken away by any subsequent statute, it follows that the circuit court erred in dismissing the appeal from the county court to the circuit court.

The objection is made, that if this proceeding under the Bastardy act is a civil proceeding, then the judgment of the Appellate Court was final, and no appeal lay therefrom. The judgment of the circuit court against the defendant was for the sum of $550, which was the utmost limit of the judgment which could be rendered in such a case under the statute, so that the amount involved was less than $1000. The eighth section of the Appellate Court act provides, that in all cases determined in the Appellate Courts, in actions ex contractu, wherein the amount involved is less than $1000, exclusive of costs, and in all cases sounding in damages, wherein the judgment of the court below is less than $1000, exclusive of costs, the judgment of the Appellate Court shall be final, and no appeal shall lie, or writ of error be prosecuted therefrom : Provided, the term ex contractu,, as used in the section, shall not be construed to include actions involving a penalty. The sum to be recovered in the case is given by the statute. "The judgment, as provided by the terms of the act, is, that the defendant be “condemned” to pay the sum adjudged, and on failure of the defendant to give the security ordered by the court for the payment of the money, the defendant is, by the order of the court, to be committed to jail until he gives the security,—so that the defendant’s personal liberty is involved in case of failure to give the security required. We think the sum which the defendant is “condemned” to pay is so much in the nature of a penalty, that the case is not included in the class of non-appealable cases where the amount involved is less than $1000, it coming within the meaning of the proviso which withdraws from that class actions involving a penalty.

The judgment of the Appellate Court was doubtless in view of a decision of this court at a former term, on a mere motion, that an appeal did not lie in a bastardy ease from the county court to the circuit court, and was justified by that decision. But that decision was only of a motion made upon hurried consideration, and without the benefit of any argument of counsel. Jn view now of full argument by counsel, and upon more mature consideration, we have arrived at the different conclusion here announced.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Scholfield :

I do not concur in this opinion.

Mr. Justice Mulkey :

I understand it to be settled by the previous decisions of this court, that in all cases where the direct object of a suit is the recovery of money or property, the right of appeal from the Appellate Court to this court depends either upon the amount in controversy, as shown by the record, or upon the amount of recovery in the court below, and that an appeal lies in neither case where the amount is less than $1000, and whether the cause of action arises ex contractu, or ex delicto, makes no difference in this respect. I therefore dissent from the conclusion reached by the majority of the court in the above opinion.


text:
    Lizzie Jessup v. John S. Jessup et al.

      Filed at Mt. Vernon January 18, 1882

      Rehearing denied May Term, 1882.

    1. Eobmeb adjudication—whether conclusive—guardian and ward as tenants in common—claim by the former for contribution for improvements—adjudication by county cowrt. All questions relating to a claim of a guardian against his ward, on final settlement in the county court, and necessarily involved in the inquiry, within the jurisdiction of the court, will be regarded as finally and conclusively settled by the adjudication of that court in disallowing such claim; but judgments or orders of this kind are not to be extended, by mere intendment, to matters not necessarily involved in the determination.
    2. The presentation by a guardian in his account against his" ward, in the county court, of a, claim for one-half of the cost of improvements put upon a lot in which his ward was a half owner in common with himself and another, made in pursuance of an executory contract made by the ward’s father with the other tenants in common, and the disallowance of such claim by that court, is no bar to the guardian claiming equitable relief as to the enhanced value of the lot, in consequence of such improvements, on a bill by him for partition of the property, the question in the latter case not having been necessarily involved in the proceeding in the county court.
    3. Guabdian and wabd as tenants in common—enforcing contribution by the ward for improvements made by the guardian. A guardian who is tenant in common with his wal'd, of a lot, can not, without an order of the proper court, expend large sums of money out of his own private funds in improving the same, wholly disproportionate to his ward’s means, and then come into court and have one-half of the expenditures allowed against his ward.
    4. Where the guardian does make expensive improvements upon the common property without the sanction of the county court, upon ordering a sale of the premises in a suit for partition, the ward should only be required to make compensation for his proportionate share of the improvements according to their then present cash value, and not according to their original cost.
    5. Decebe in partition—construed, as to apportioning cost of improvements. A guardian made improvements upon a lot owned by him in common with his ward, in pursuance of a contract made by him and the ward’s father before his death, and on a bill for partition the decree of sale first found the value of the lot without the improvements, and the respective amounts contributed by the parties making the improvements, and ordering the lot with the improvements to be sold, and the proceeds divided according to the respective interests of the parties thus ascertained: Held, that this required that the ward and the other co-tenants should first be paid each one-half the full value of the lot as thus ascertained, and that the residue of the proceeds, representing the value of the improvements, should be divided between the parties in proportion to the amounts contributed by them, respectively, to the making of the improvements.
    6. Administbation op estates—as to administrator performing ex-ecutory contracts made by Ms intestate. While it is true that an administrator is liable on all the contracts of his intestate, including executory as well as executed contracts, which are not of a personal character, yet in the case of executory contracts the legislature has expressly provided that they may be performed by the executor or administrator, “when so directed by the county court. ”
    7. If the administrator undertakes to perform such a contract without the direction of the court, he does so at his peril, if loss shall occur. If the performance of a contract in the case of an insolvent estate will result in giving the party with whom such contract was made, an undue advantage over other creditors of the estate, it. should not be performed, and if the administrator does so without the sanction of the county court, he will he liable to other creditors who may be injured thereby.
    Appeal from the Circuit Court of Will county; the Hon. Josiah McBoberts, Judge, presiding.
    On the 21st day of April, 1857, Cornelius Jessup, Edward H. Jessup, and John S. Jessup, entered into partnership, as hardware merchants, under the firm name of “Jessup Brothers. ” The storehouse in which their business was subsequently carried on, was situated on the north 28 feet of lot 4, in block 4, in Wilmington, Will county, this State, one-half of which belonged in fee to Cornelius, and the remaining half belonged to the other two partners. The partnership continued, and the business was conducted on the above mentioned premises until on or about the 1st of March, 1863, when Cornelius died intestate, leaving appellant, Lizzie Jessup, his only child and heir at law. After the death of Cornelius, the survivors, Edward and John, continued the business at the same place, under thé style of “Jessup & Brother, ” until - the 4th day of October, 1876, when Edward died, leaving Mattie Jessup, his widow, and two children, John D. and Lewis Jessup, his only heirs.
    Prior to the death of Cornelius the members of the firm of Jessup Brothers had agreed among themselves to remove the old storehouse, and put up in its stead a more commodious and expensive business house, and to this end they had already entered into certain executory contracts for some of the material and work required for the construction of the same. After his death there seems to have been no material change in their manner of doing business, and the above agreement, with respect to the removal of the old and the putting up of a new business house, was carried out by the survivors, at a cost of some $9000.
    On the 1st of June, 1863, John S. was appointed, by the probate court of Will county, administrator of the estate of Cornelius, and on the 11th of December following he was also appointed, by the same court, guardian of Lizzie Jessup, both of which trusts he accepted, and entered upon their performance. On July 9, 1866, he made his final settlement with the probate court as administrator, from which it appears he had accounted for all moneys that came into his hands belonging to the estate, except what had been expended in the construction of the new business house. On the same day he filed his first report as guardian, showing receipts by him to the amount of $674.75, and disbursements amounting to $1056.01. No further report appears to have been made by him as guardian until the 8th of May, 1876, near ten years afterwards, when he presented another report, in which he claimed a balance due him from his ward of $7171.65. In this report he charged his ward with one-half of the cost of the new business house, and also credited her with onelialf the rents, commencing with the year 1866. The account between the guardian and his ward, as shown by this report, was contested by the latter, both parties being represented by counsel. Upon a full hearing of the controversy, the court found the guardian indebted to his ward in the sum of $227.64, and the account was restated accordingly. It appears, from the restatement of the account, the court excluded from the estimate all items with which the guardian had credited himself on account of advances claimed to have been made by him for "his ward in the construction of the new business house, and all interest on such advances. So far as this record shows, this adjudication of the county court is still in full force and effect.
    Under this state of facts John S. Jessup, the guardian, on the 20th of August, 1877, filed the present bill in the Will circuit court, making appellant, and the widow and heirs at law of Edward H. Jessup, parties, by which he seeks an accounting with respect to the partnership affairs, and a partition of the lot in question, and asks that in making such partition appellant be required to make compensation for one-half the improvements on the premises, which are charged to have been made at the exclusive cost of complainant and Edward H. Jessup, except" $913.71, which is conceded to have been furnished by appellant. Appellant filed an answer and cross-bill, setting up her interests in the premises, and also the adjudication in the county court, above mentioned, in bar of complainant’s claim to compensation on account of improvements, as just stated. The cross-bill further shows, that in 1872 complainant and Edward H. Jessup executed to Charles H. Jerome a mortgage upon the premises, to secure a loan of $3000, which is still unsatisfied, and makes Jerome a party defendant. Jerome answered, and also filed a cross-hill, asking a foreclosure of his mortgage.
    ■ The court', upon the hearing, found that appellant was the owner in fee of one undivided half of the lot, and that complainant and the heirs of Edward H. Jessup were the owners of the other half, subject to the Jerome mortgage; that the present value of the lot without the improvements was $1500 ;■ that the total cost of the improvements thereon was $8989.47, and that of that sum appellant had contributed $913.71, and that complainant and Edward H. Jessup had contributed the residue. And it appearing the premises could not be partitioned without prejudice, the court thereupon ordered the same to be sold, and that the proceeds thereof, in excess of the value of the lot without the inqprovements, he divided in proportion to the amounts respectively contributed by the parties to the making of said improvements, from which decree Lizzie Jessup alone 'has prosecuted an appeal to this court.
    Messrs. Boutell & Watebman, for the appellant:
    The decree of the court below is erroneous, because it entirely disregards the prior adjudication of the county court upon the account of complainant against Lizzie Jessup, for the improvement of the premises in question, the matter of this- account being, we insist, res judicata. Voorhes v. Bank of the United States, 10 Peters, 469; Vallandingham v. Ryan, 17 Ill. 25; Rogers v. Higgins, 57 id. 247; Howell v. Goodrich, 69 id. 556; Dalton v. Bentley, 15 id. 420; Hamilton v. Quimby, 46 id. 90; Betts v. Starr, 5 Conn. 550; Embury v. Cannon, 3 Comst. 522; Doty v. Brown, 4 id. 71; White v. Coatsworth, 2 Seld. 143; Gardner v. Buckee, 3 Cow. 126; Hopkins v. Lee, 6 Wheat. 109; Kelly v. Donlin, 70 Ill. 385.

      The allowance of a guardian’s account is a judicial act. Bond v. Lockwood, 33 Ill. 212.
    Fixing the amount due from an administrator is res judicata. Gilbert v. Guptill, 34 Ill. 112.
    The decree is erroneous, because Lizzie Jessup, without whose consent they (the improvements) were made, is charged therein with the cost of the same, which the evidence shows far exceeds their value, as well as the enhanced value of the premises arising therefrom. Louvalle et al. v. Menard et al. 1 Gilm. 45; Dean et al. v. O’Meara et al. 47 Ill. 121.
    The decree is erroneous, because inconsistent with itself. It finds that the cost of the improvements was $8075.76. It also finds the cost of the improvements to have been $8989.47.
    Messrs. Garnsey & Knox, for the appellees:
    As between tenants in common, one ought not to profit by improvements made by another, hut should make fair contribution. Louvalle v. Menard, 1 Gilm. 40; Gardner v. Dederichs, 41 Ill. 164; Dean v. O’Meara, 47 id. 121; Kurtz v. Hibner, 55 id. 514; Mahoney v. Mahoney, 65 id. 406; Turner v. Bennett, 70 id. 268; Roberts v. Beckwith, 79 id. 246; Wilton v. Tazewell, 86 id. 29.
    The proceeding in the county court was solely to compel John to account for his mismanagement of his ward’s estate, while this is a proceeding to equitably partition realty, and hence the adjudication in the county court is no bar to the equitable relief sought. Duchess of Kingston’s case, 2 Smith’s Leading Cases, (7th Am. ed.) 574; Bruce, V. C. Barrs v. Jackson, 1 Younge & Coll. 598; S. C. 20 Eng. Ch. Rep. 585; 2 Smith’s Leading Cases, (7th ed.) 597.
    A judgment is conclusive upon the parties to it only in respect to the grounds covered by it, and the law and the facts necessary to uphold it. Bigelow on Estoppel, p. 22.

      This court has repeatedly recognized the authority and followed the doctrine of these English cases, and we deem it sufficient to cite only a few of the decisions of this court, in addition to the above: Gray v. Gillilan, 15 Ill. 453; Stone et al. v. Wood, 16 id. 177; McCloskey v. McCormick, 44 id. 338; Miller v. McManus, 57 id. 128; Williams v. Walker, 62 id. 518; Embury v. Conners, 3 Comst. (N. Y.) 523.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The propriety of this decree is questioned chiefly on the ground that appellant’s right to share in the proceeds of sale in excess of the present value of the lot, exclusive of improvements, is made to depend upon the relative amount contributed by her to the improvement of the lot. She earnestly insists, by her counsel, that inasmuch as John Jessup, her guardian, formally presented in the probate court, for allowance, an itemized account against her, as his ward, for one-half of the cost of the improvements for which he now seeks to recover out of the proceeds of the sale of the property, which account, after a formal hearing and due consideration, was disallowed and rejected by the court, it is a complete bar to the claim in the present proceeding.

It is clear that all questions relating to this claim within the jurisdiction of the court, and necessarily involved in the inquiry then before it, must be regarded as finally and conclusively settled by the adjudication in that proceeding; yet, on the other hand, it is well settled that judgments or orders of this character are not to be extended, by mere intendment, to matters not necessarily involved in the determination. The presentation of this claim in the probate court by the guardian did not raise the question involved in the present case. The inquiry here is, assuming appellee and Edward Jessup made these improvements mainly out of their own private funds, ought they, in a division of the proceeds of the sale of the lot with the improvements on it, be compensated out of the proceeds, in so far as its value has been enhanced by their private funds ? No question of this kind was involved in the proceeding in the county court. The question there presented was, whether a guardian, who, is tenant in common with his ward, of a lot of ground, may, without any authority from the county court or other tribunal, go on and expend large sums of money, out of his own private funds, in improving the same, wholly disproportionate to his ward’s means, and then come into court and have one-half of these expenditures allowed against his ward. The county court properly held that this could not be done, and from a careful consideration of the record we are satisfied that this is all that was determined by the refusal of the county court to allow the claim. Such being the ease, the order of the county court in disallowing the claim as a charge against the ward in her guardian’s account, can not properly be regarded as a bar to the claim as now presented.

It may be supposed that, inasmuch as a considerable portion of the improvements made on this lot was under contract before the original partnership was dissolved by the death of Cornelius Jessup, appellee, as his administrator, was bound to go on and perform the contract, and that the estate would therefore be bound by his action. With some modification this position may be conceded to be substantially correct. It is true that an administrator is liable on all the contracts of his intestate, including executory as well as executed contracts, which are not of a personal character. Yet in the ease of executory contracts the legislature has expressly provided, that “all contracts made by the decedent may be performed by the executor or administrator, when so directed by the county court; ” and if the administrator undertakes to perform such a contract, as was done in this case, without the direction of the county court, he does so at his peril, if loss should occur. If the performance of a contract will, in the case of an insolvent estate, result in giving the party with whom such contract was made, an undue advantage over-other creditors of the estate, it should not be performed, and if the administrator does so without the sanction of the county court, he will be liable to other creditors who may be injured thereby. In this ease the administrator proceeded without authority from the county court to make large expenditures on account of such a contract, and without the necessary funds in his hands, belonging to the estate, to meet them, and if he has sustained a loss in consequence of it, it is attributable to his own folly in disregarding a plain provision of the statute. Smith, Admx. v. Wilmington Coal Mining and Manf. Co. 83 Ill. 498.

The only remaining objection to the decree which we deem important to notice, is that which questions the method adopted by the court in determining the several interests of the parties in the proceeds of the sale. It is claimed by appellant, that under the decree as rendered she is required to make compensation for the improvements at their original cost, whereas she should only be required to pay' for them according to their present value. While we concede appellant should only be required to make compensation for her proportionate share of the improvements according to their present cash value, and not according to their original cost, yet we do not consider the decree susceptible of the construction given to it by appellant, to the extent claimed. If this objection to the decree had any foundation in fact, the error would certainly be fatal, for it must be conceded it would be highly inequitable to require appellant to make compensation for the improvements on the basis of their original cost. But as we understand the decree nothing of the kind is required. As we construe it, the decree first ascertains the present value of the lots without the improvements, and the respective amounts contributed by the parties to the making of the improvements, and then orders the lots with the improvements to be sold together, and the proceeds to be divided according to the respective 'interests of the parties thus ascertained. From this we understand, appellant, on the one hand, and the complainant and the heirs of Edward Jessup, on the other, are to be first respectively paid one-half the full value of the lot as thus ascertained, and the residue of the proceeds, which must necessarily represent the present value of the improvements, is to be divided between the parties in proportion to the amounts contributed by them, respectively, to the making of the improvements. We see nothing improper in this. Indeed, we are aware of no other equitable basis upon which the present value of the improvements could be otherwise properly divided. Whether some other, more appropriate, method of ascertaining their respective interests in the property should or might have been adopted, it is unnecessary to inquire, as none has been suggested.

Perceiving no material error in the proceedings, the decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Dickey

text:
    The City of East St. Louis v. The Trustees of Schools.

      Filed at Mt. Vernon January 18, 1882

      Rehearing denied May Term, 1882.

    1. Taxation—license money for dram-shops is not a tax. The money received by a city for dram-shop licenses is not a tax, and the fund thus derived is not required by any constitutional provision to be applied solely to municipal purposes. It is a burden imposed for the right of exercising a privilege which the legislature has the right to withhold or inhibit altogether.
    2. Constitutional law—devoting license money to school fund. A section in a city charter providing that one-half of all the money received into-the city treasury from dram-shop licenses collected shall be paid over at least quarterly to .the treasurer of a school township, by him to be apportioned to the several schools taught in said city, in the same mode and manner as interest on the township school fund is required to be distributed, is not in violation of any constitutional provision. The legislature may dispose of such a fund for any public use it may choose.
    Writ of Error to the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.
    Mr. M. Millard, for the plaintiff in error.
    Mr. C. F. Noetling, and Mr. E. A. Halbert, for the defendants in error.
    Mr. L. H. Hite, also for the defendants in error.
   Mr. Justice Dickey

delivered the opinion of the Court:

' The city of East St. Louis embraces within its limits a part of town 2 north, in range 10 west, in St. Clair county, but does not embrace all of the territory in that township; and the city also embraces a part of town 2 north, in range 9 west' but does not embrace all of that township. The schools in both of these townships are all located within the city limits. The charter of the city, passed in 1869, gives it power, among other things, “to license, tax, regulate, prohibit and suppress dram-shops. ” By another section it is provided that “one-half of all the money received into the city treasury from dram-shop licenses collected, shall be paid over, at least quarterly, to the treasurer of the school township No. 2 north, range 10 west, in St. Clair county, Illinois, by him to be apportioned to the several schools taught in said city, under the general school laws of this State, in the same mode and manner as interest on township school fund is now required to be apportioned and credited to the respective school districts,” and “liable to the order of the respective boards of school directors as other funds for the support of said schools of said city, respectively. ”

This is an action brought in the City Court of East St. Louis, by the treasurer of township No. 2 north, range 10 west, to recover one-half of certain moneys which it is conceded “were received into the city treasury from dram-shop licenses collected. ” Judgment was there rendered for the amount so received. To reverse this judgment the city brings the record here for review, upon a writ of error.

Counsel for the city, to reverse this judgment, insists:

First—All taxes or revenues must be expended for the equal benefit of all who contribute in paying them, otherwise there would be inequality in taxation.

Second^-A tax or revenue collected under one corporate authority can not be applied in paying the debts and expenses of another, because all revenues must be raised for a corporate purpose, and that is not a corporate purpose.

Third—The legislature has no power to impose a corporate tax, or, what is the same thing, divert a corporate tax, even for a corporate purpose.

Without questioning or in any way passing upon the accuracy of the propositions thus presented, it is sufficient to say that they have no application to the case presented by this record. This is not a tax, in the sense in which that term is used in our constitution and statutes. In Craw v. Tolono, 96 Ill. 261, it was said: “Taxation is imposed upon the citizen, or resident of the State, or municipal corporation, or person doing business within-the jurisdiction thereof, to compel him to contribute to the maintenance of the government by which his life, liberty, property or business is protected, in common with that of other citizens, residents, or persons doing business. Taxation is subject to certain regulations of our constitution as to equality and uniformity. Where a municipal corporation has power to prohibit the doing of a thing, and also the power to license the same thing to be done, the license fee demanded by ordinance for the doing of such thing is not a tax, but is a price paid for the privilege of doing such thing. ” So it was held in The People v. Thurber, 13 Ill. 554; Insurance Co. v. Peoria, 29 id. 180; East St. Louis v. Wehrung, 46 id. 392; Ducat v. Chicago, 48 id. 172; Walker v. Springfield, 94 id. 372. In The People v. Thurber, it is said of a like exaction: “This is not a tax, * * * but is a burden * * * for the right of exercising a * * * privilege which the legislature would have the right to withhold or inhibit altogether. ” This language is quoted with approbation in Walker v. Springfield, supra, decided in 1880. In Chelvers v. The People, 11 Mich. 43, it is said of a license fee: “It is not a tax, ” in the' sense in which that word is used in the constitution of that State, and it is added: “It is a price paid for a franchise * * * vested in an individual. ”

The State has expressly clothed the city of East St. Louis with power “to license, * * * prohibit or suppress dram-shops,” and by implication, from other words of the charter, has authorized the city to receive money into the city treasury derived “from dram-shop licenses.” Such a fund is not required, by any known constitutional requirement, to be applied solely to municipal purposes. The General Assembly had the power to dispose of such a fund for any public use. It might be required to be paid into the State treasury, the county treasury, or applied to the use of schools in any district or place where the General Assembly might think proper to-place it.

We find no sufficient ground on which to assail the validity of the statute. ® The judgment is therefore affirmed.

Judgment affirmed.