author: Per Curiam : Baker, J.:

text:
    Lyman Everingham v. The National City Bank of Ottawa.

      Filed at Ottawa May 9, 1888.

      1. Execution lien—as to personal property—of the rule of priority where there a/re several executions. As to personal property, the general rule is, that executions are to be satisfied in the order of their priority, the first writ delivered to the officer taking precedence as the first lien, and the others following in the order in which they are received. This rule obtains even though the first seizure may have been made on a subsequent execution. So, also, a fieri facias delivered to a sheriff takes precedence of an attachment levied before it, but after such delivery.

      2. If the officer has more than one execution in his hands, he should apply the proceeds of the sale of personal property on the elder writ, for •the sale is not for the benefit of the particular writ which is first levied or under which the sale is made, but for the benefit of all the writs in his hands, in the order in which they rank as liens upon the personalty.
    3. Same—whether priority lost in favor of other creditors. As the .object of an execution is to obtain satisfaction of the judgment on which it issues, it follows that any act of the creditor, or directions from him to the sheriff, diverting a prior execution from this purpose, renders it dormant, .•and inoperative against other creditors, and clothes them with priority. This doctrine had its origin in the statute of 13 Elizabeth, chapter 5.
    4. It has been deduced from this statute, that any attempt to make use ,of an execution., even without any actual fraudulent intent, for purposes ,of security, merely, is a perversion of the writ, and renders it constructively fraudulent as to junior executions and writs. It has been remarked, how.ever, that there is no settled rule whereby it may be determined when a senior writ loses its preference, but each case must be determined by its .own peculiar circumstances.
    5. Same—the particular case. A judgment was obtained against two parties, and execution was sued out, the plaintiff directing the sheriff to "levy the same on land which one of the debtors had conveyed to a third -person, and also filed Ms bill in aid of such levy. It did not appear that the plaintiff, at the time of the levy, had notice of the existence of personal ■property of the debtors. Afterward the plaintiff sued out an attachment against one of the same debtors, and directed the officer to levy the same .on personal property. Afterward, but in the life of the execution, the plain■tiff released his levy on the land, and had his execution levied on personal property: Held, that by the levy on the land and the levy of the attachment, ■the plaintiff did not lose the prior lien of his execution in favor of other .execution and attaching creditors.
    6. Attachment—order of distribution among judgment creditors. A plaintiff recovered two judgments for the same debt, the one upon the real indebtedness, and the other upon a note given by his debtor with another ;as surety, which was given as collateral security for the payment of the original debt. These and other judgments were recovered at the same •time, in attachments and other actions against the same debtor: Held, that the holder of the two judgments was entitled to distribution of the proceeds .of the property attached up.on the first judgment, but not upon the other, .it being for the same debt.

      1. It is plainly the intention ,of section 41 of the Attachment act, that •all creditors who obtain -judgments at the return term or terms in which judgment in the first attachment is recovered, shall be placed upon an .equality, and that the proceeds .of the property attached shall be distributed among them equally and impartially, in proportion to the different amounts of their respective debts. But a creditor having two judgments for the same debt is not entitled to an equal distribution on each, as against the other creditors.
    Appeal from the Appellate Court for the Second District;—• heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Duncan, O’Connor & Gilbert, for the appellant:
    The delivery of an execution to an officer, with instructions to do nothing under it, is really no delivery, and confers no rights upon the creditor. Freeman on Executions, sec. 206 ; Gilmore v. Davis, 84 Ill. 487; Korn v. Roemheld, 6 Bradw. 275; Baldwin v. Freydendall, 10 id. 106; Kellogg v. Griffin, 17 Johns. 274; Knower v. Bernand, 5 Hill, 377.
    An execution is subject to the plaintiff’s control, and the officer is bound to follow all of the plaintiff’s directions not savoring of undue rigor and oppression. Freeman on Executions; Godfrey v. Gibbons, 22 Wend. 569; Reddick v. Cloud’s Admrs. 2 Gilm. 670; Morgan v. People, 59 Ill. 58.
    A levy upon personal property of sufficient value to satisfy the writ, is a satisfaction of the judgment. Freeman on Executions, sec. 269 ; Martin v. Charter, 27 Ill. 294; Ambrose v. Weed, 11 id. 489; Montgomery v. Wayne, 14 id. 374; Smith v. Hughes, 24 id. 276; Trenary v. Cheever, 48 id. 28; Harris v. Evans, 81 id. 419.
    A senior execution creditor has no right to shift his levies to the prejudice of subsequent creditors who have acted on the faith of his action. Smith v. Hughes, 24 Ill. 276; Dean v. Patten, 13 S. & R. 345.
    A party can not occupy inconsistent positions. Bigelow on Estoppel, 480, 562, and cases cited.
    An attaching creditor is estopped from claiming absolute ownership of the property as against subsequent attaching creditors. Vameter v. Crossman, 42 Mich. 465.

      One consenting to an act is estopped from denying its validity. Truesdail v. Ward, 24 Mich. 117.
    A first attachment operates as the appropriation of the property for the benefit of all the attachments, etc., running to the same terms. Smith v. Bridge Co. 13 Bradw. 572; Pollack v. Slack, 92 Ill. 221.
    Appellant was entitled to a distribution upon both his judgments.
    Mr. D. B. Snow, and Messrs. Mayo & Widmer, for the appellee :
    In all cases where the first execution has lost its preference, something was said by the plaintiff or his attorney from which the sheriff could reasonably infer that he was authorized to give indulgence. Bank v. Brown, 6 Hill, 232.
    In the case cited, the goods remained unsold over a year after the levy, and it was urged that because of such delay the execution was postponed, and lost its priority. But the court held that such delay worked no postponement. To the same effect, embodying a full discussion, are McCoy v. Reed, 5 Watts, 300; Howell v. Alkyn, 2 Rawle, 285; Brown’s Appeal, 26 Pa. St. 490.
    Counsel concede that a levy upon real estate, sufficient to satisfy the debt, does not, as in case of levy on personal property, operate, even prima facie, as a satisfaction of the execution. Such levy upon real estate does not even suspend the writ, nor does it, while undisposed of, operate to bar collection in any other manner. Herrick v. Swantwout, 72 Ill. 340; Gregory v. Stark, 3 Scam. 611; Gold v. Johnson, 59 Ill. 62; Robinson v. Brown, 82 id. 280.
    As to successive levies upon the same writ, it is laid down in Freeman on Executions, (sec. 253,) that “even where an officer, in the first instance, finds sufficient property, various causes may arise prompting him to levy upon a part, only. The levy upon this part is no waiver of the right to make a further levy at a subsequent period. In fact, the general rule prevails, without exception, that an officer, notwithstanding this prior levy, has, at any time before the return day, the power to make such further seizure as may be necessary to satisfy the plaintiff’s debt.” Montgomery v. Wayne, 14 Ill. 373; Marshall v. Monis, 13 Ga. 185; Debrack v. Myrick, 6 id. 410; Hammond v. Myrick, 14 id. 77; Hogshead v. Carruth, 5 Yerg. 227.
    By the law of the liens of executions, it is of no consequence under which execution, whether junior or senior, a levy and sale are made. It is the duty of the sheriff to distribute the proceeds of the sale between the several writs that may be in his hands, according to their priority. Freeman on Executions, sec. 196; Rogers v. Dickey, 1 Gilm. 636.
   Per Curiam :

We have given careful consideration to the very full and exhaustive arguments, both oral and written, made in this case, and having done so, we are satisfied that the following opinion of the Appellate Court states the points in contention, and the law applicable thereto, with such fullness and accuracy that no useful end can be subserved by writing another opinion, and for the reasons there given the judgment of the Appellate Court is affirmed.

Baker, J.:

In February, 1884, William Butters executed to Ann Armour a mortgage upon 207 acres of land in LaSalle county, to secure the payment of $3000 in five years, with seven per cent interest, and said mortgage is still a valid and subsisting lien upon said land.

On February 9, 1887, the firm of Nash, Wright & Co. obtained a judgment by confession in the circuit court of La Salle county, for $3626.21 and costs, against said William Butters and James R. Butters, and on the same day execution was issued on the judgment, and levied on the real estate above mentioned; and at the date of the hearing in the circuit court, of the matter at bar, there was still due and unpaid upon said judgment the sum of $1700.

On February 11, 1887, said William Butters executed to one John H. Druitt a warranty deed to said land, for the expressed consideration of $12,000, which deed was duly filed for record on the next day.

On February 14, 1887, the National City Bank of Ottawa recovered a judgment by confession, in the circuit court of, LaSalle county, against William Butters and James R. Butters, for $3102.22 and costs, upon which execution was issued on the same day, and placed in the hands of D. B. Snow, the plaintiff’s attorney, who directed the sheriff to levy it upon said 207 acres of real estate, and informed the sheriff that he was about to file a bill in chancery in aid of the levy. No other directions were given to the sheriff concerning this execution until March 11, 1887, as hereinafter mentioned. On the same day the National City Bank, by the same attorney, filed a bill in chancery, in the circuit court, in aid of the levy, alleging that the'title to this real estate had been in the defendant William Butters, but that said William Butters had made a fraudulent conveyance thereof to John H. Druitt. The bill also alleged that the defendants in the execution had no other property subject to execution, of sufficient value to satisfy the judgment. The prayer of the bill was, that the conveyance from Butters to Druitt be adjudged fraudulent and void, and that the land be subjected to sale under the execution. This bill was prosecuted until March 25,1887, when it was dismissed without prejudice.

On February 16, 1887, the National City Bank of Ottawa, by the same attorney, commenced a suit in attachment, in the circuit court, returnable to the March term, 1887, against James R. Butters, for $1000, and on the same day, D. B. Snow, the plaintiff’s attorney, delivered the writ of attachment to the sheriff, and directed him to levy it upon the personal property the proceeds of which are-now in controversy, which the sheriff accordingly did. Judgment fdr $1000, and costs was duly entered against the defendant on the 22d day of March, 1887.

On February 18,1887, Lyman Everingham commenced an action of assumpsit by capias, in the circuit court, against William Butters and James R. Butters, returnable to the March term, 1887, upon which such proceedings were had that on March 21, 1887, the capias was quashed and judgment entered against the defendants for $5077.77 and costs, upon which execution was issued, and returned no property found or money made. The judgment was rendered upon a promissory note executed by the defendants January 11,1887, as collateral security for moneys to be thereafter advanced by the plaintiff to James R. Butters, which moneys formed the consideration of the judgment next hereinafter mentioned.

On March 2, 1887, Lyman Everingham commenced, in the circuit court, a suit in attachment, returnable to the March term, 1887, against James R. Butters, and the writ issued in that suit was, on the same day, levied upon the same personal property which had been levied upon under the attachment of February 16, 1887, in favor of the National City Bank. Judgment for $5420 and costs was duly entered in this suit on March 16,1887, and a special execution was issued, under which the property attached was sold.

On March 11, 1887, the National City Bank, by its attorney, directed the sheriff to levy the execution of February 14, 1887, for $3102.22, upon the personal property which had been levied upon under the writs of attachment, which the sheriff accordingly did, and the property was sold under that execution, as well as under the special execution in favor of Everingham, on the 26th day of March, 1887, the amount realized .by the sale being $4318.80, and after deducting all costs and expenses, there was left in the sheriff’s hands, for distribution to the judgment creditors, the sum of $4174.16.

On March 25,1887, the attorney of the National City Bank directed the sheriff to release the levy on the real estate, and dismissed the bill in chancery without prejudice, and on March 26,1887, Everingham filed his bill in chancery to set aside the sale of the real estate from William Butters to John Druitt, and to subject the land to the satisfaction of his judgment for $5077.77, against William Butters and James B. Butters.

Upon the foregoing facts it was claimed by Lyman Everingham, that although the execution of February 14, 1887, for $3102.22, in favor of the National City Bank, was the first writ placed in the sheriff’s hands, yet, by reason of the directions given to the sheriff, by its attorney, to levy on the real estate, the prosecution of the bill in chancery in aid of the levy, and the levy made February 16, 1887, upon the personal property, by direction of its attorney, under its own writ of attachment, which was junior to its execution of February 14, 1887, the lien of the latter writ was voluntarily waived or suspended, and that the proceeds of the execution sale should therefore be applied pro rata upon the judgment of $1000 in favor of the bank, and the judgments of $5420 and $5077.77 in favor of Everingham, and that no portion of the proceeds should be applied upon the execution of February 14, 1887, for $3102.22. But the court below held that the judgment for $3102.22, in favor of the bank, must first be paid in full, and that, inasmuch as Everingham’s judgment of $5077.77, against William Butters and James B. Butters, was merely collateral security for the judgment of $5420 against James B. Butters, only the latter judgment could participate in the proceeds, and that therefore the balance of the fund, after paying the said judgment of $3102.22, should be applied pro rata upon the judgment of $1000 in favor of the bank, and that of $5420 in favor of Everingham. This action of the court, it is insisted, was erroneous, and in support of such position the following propositions are urged:

First—That any directions, express or implied, given by plaintiff to the sheriff, by reason of which a levy upon property under an execution is delayed, operate, while such directions are in force, to suspend the lien of the writ.

Second—That the directions given by Snow, the attorney of the National City Bank, to the.sheriff, were equivalent to directions not to levy upon the personal property in question until March 11, 1887, and therefore operated to suspend the lien of the execution until that date.

Third—That the conduct of the bank’s attorney, from February 14 to March 11, is conclusive evidence that during that time it was not seeking to enforce the execution of February 14 against this personal property, and therefore the lien of the execution upon it during that time was suspended.

Fourth—That the levy on the real estate, and the filing of the bill in aid, were inconsistent with a levy on the personal property, and therefore suspended the lien.

Fifth—That the action of the bank with respect to its levies being such as would have a tendency to mislead and hinder Everingham in the collection of his debt, the bank is estopped from asserting a right to levy on the personal property under its senior execution.

Sixth—That the judgment of $5077.77, in favor of Everingham, was one upon which Everingham was entitled to a pro rata share of the fund.

In respect to personal property, the general rule is, that executions are to be satisfied in the order of their priority, the writ first delivered to the officer taking precedence as the first lien, and the others following in the order in which they are received. This rule obtains even though the first seizure may have been made on a subsequent execution, and if the sheriff 'has more than one execution in his hands, he should apply the proceeds of sale on the elder writ, for the sale is not for the benefit of the particular writ which is first levied or under which the sale is made, but for the benefit of all the writs in his hands, in the order in which they rank as liens upon the personalty. So, also, a fieri facias delivered to a sheriff takes preference of an attachment levied before the ft. fa., but after such delivery. Freeman on Executions, sec. 196; Herman on Executions, sec. 183; Rogers v. Dickey, 1 Gilm. 636; Leach v. Pine, 41 Ill. 65; Lawrence v. McIntire, 83 id. 399.

This much seems to be conceded in this case, but the contention of appellant is, that as the attorney for appellee gave to the sheriff a description of the real estate, and told him to levy appellee’s execution thereon, and at the same time informed him that he was about to'file a bill in chancery in aid of such levy, and actually did file such bill, therefore appellee lost the right to levy its senior execution on the personal property and assert a priority over the junior writs, because the levy on real estate, and the exhibiting of the bill in aid, were inconsistent with a levy on the personal property and a suspensipn of the lien of the senior execution.

It is well settled doctrine, that as the object of an execution is to obtain satisfaction of the judgment on which it issues; therefore any act of the creditor, or directions from him to the sheriff, diverting the execution from this purpose, renders it dormant and inoperative against other creditors, and clothes them with priority. (Gilmore v. Davis, 84 Ill. 487; Koren v. Roemheld, 6 Bradw. 275; Kellogg v. Griffin, 17 Johns. 274; Knower v. Bernard, 5 Hill, 377.) This doctrine had its origin in the Statute of 13 Elizabeth, chapter 5, which provided that executions taken out with intent to hinder, delay or defraud creditors, or others, should be, as against the person sought to be hindered, delayed or defrauded, utterly void. It has been deduced from this statute, that any attempt to make use of an execution, even without any actual fraudulent intent, for purposes of security merely, is a perversion of the writ, and renders it constructively fraudulent as to junior executions and writs. It has been remarked that there is no settled rule whereby it may be determined when a senior writ loses its preference, and that each particular case must be determined by its own peculiar circumstances.

Under the circumstances of the case in hand, the bank was guilty of no improper use of the process of the court, and by its conduct waived no legal right or lost no lien. Immediately upon recovery of judgment it sued out a fieri facias, and had it levied upon real estate, and on the same day filed a bill in chancery in aid of the levy, for the purpose of setting aside what it supposed to be a fraudulent conveyance of the land. It used unusual zeal and diligence in getting service and pressing the suit in aid.

The allegations of the bill were, that William Butters had not sufficient personal property to satisfy the execution, and that James R. Butters had not sufficient property liable to execution to satisfy the judgment, and that he was virtually insolvent. It does not appear that at the time of the levy on real estate the bank had any actual notice of the personal property which was afterward seized and sold, or of its value. It may be the levy on the land was not the most effective way in which the bank could have proceeded in order to make its money, and make it as quickly as possible; but probably it was not then advised of any more promising mode of procedure. In any event, what it did was in furtherance of the object of the writ to enforce payment of its judgment. Neither the bank nor its attorney directed the sheriff not to levy on personal property. The bill in equity could only be prosecuted upon the theory, the personal property the defendants-in execution had was insufficient to satisfy the debt; and had the bank known there was sufficient of such property, it would clearly have been inconsistent in it to both file the bill and levy on the personalty. But that is not the standpoint from which this case is to be regarded, for appellee was proceeding, as is shown by the allegations of the bill, upon the theory of an insufficiency of personalty, and there is nothing in the record to indicate it was not acting in good faith. Besides this, a levy on real estate, even of value sufficient to pay the debt, is not prima facie a satisfaction of the execution. The levy, therefore, did not prevent the sheriff from seizing other property under the writ, and selling it. It will not do to say that whenever an execution is, by direction of a plaintiff, levied on certain property, such levy is effective to suspend the lien of the writ in respect to all other property of the defendant in execution.

Even in regard to personalty, where a levy sufficient to pay the indebtedness operates sub modo as a satisfaction, it may turn out the property seized belongs to another person, or is exempt from forced sale, or is insufficient to satisfy the debt, or is removed from the possession or control of the sheriff by the act of the defendant in execution. The rule prevails, without exception, that an officer, notwithstanding a prior levy, has, at any time before the return day, power to make such further seizure as may be necessary to satisfy the plaintiff’s debt. (Freeman on Executions, sec. 253; Montgomery v. Wayne, 14 Ill. 373.) But here, as the first levy was upon real estate, the case is all the stronger for appellee, as such levy, regardless of the question of value of property, did not, like a levy on sufficient personal property, operate, while undisposed of, as such a satisfaction of the judgment as to bar an attempt to enforce collection in any other manner. Herrick v. Swartwout, 72 Ill. 340.

In Deloach & Wilcoxson v. Myrick, 6 Ga. 410, a fieri facias had been levied on lands, and the levy afterwards dismissed by order of qdaintiff’s attorney, and a levy made upon a negro boy, and intermediate the two levies the boy had been sold to Deloach & Wilcoxson, and it was decided they could not hold the boy as against the lien of the plaintiff in execution. See, also, Hammond v. Myrick, 14 Ga. 77; Hogshead v. Carruth, 5 Yerg. 227.

The logic of appellant’s claim made herein, would lead to the conclusion that a direction to levy upon particular property would be effective to suspend the lien of the execution as to all other property of the execution debtor. Herein, we think, lies the fallacy of his argument. It is true that from February 14 to March 11 the bank was not seeking to enforce its execution of February 14 against the personal property upon which it was subsequently levied, but, in our opinion, the conelusion does not follow therefrom that during that time the lien of the execution was dormant, and constructively fraudulent as to such personal property. That which the rule deduced from the Statute of Elizabeth is leveled against, is the perversion of the writ of fieri facias from its legitimate purpose of enforcing payment, and there is no such perversion - when there is an absolute intention of collecting the judgment, and a levy is made in good faith, which is afterward abandoned and a new levy made on other property upon discovery of the fact the first levy is, or probably will prove to be, ineffective. In this case, the bank seems to have been more than ordinarily diligent and industrious in its efforts to enforce payment through its senior execution. At the time of the levy on the land it was already incumbered by a valid mortgage lien and a prior judgment lien, amounting together to about one-half its value. As soon as it was ascertained from the depositions taken in the chancery suit, that the conveyance to Druitt was probably bona fide and for a valuable consideration, the bank forthwith directed a levy upon the personal property, and shortly thereafter released the levy on the land, and dismissed its bill in aid of such levy. The fact that the bank supposed, at the time of the first levy, and for a month thereafter, that it would be able to make its debt out of the realty, and did not, during that time, either intend or seek to subject the personal property in satisfaction of such debt, was not an abuse of the process of the court. The law does not punish the plaintiff in senior execution for making an ineffectual levy, by forfeiting his prior lien upon all property not included in such levy. All that it requires of him is, that he should act in good faith, and retrace his steps during the lifetime of his senior execution, and before the personal property has been actually sold by virtue of a junior writ.

If we are right in our conclusion, then appellant can take nothing by his claim that the direction to the sheriff to levy the bank attachment writ of February 16 upon the personal property, was, by necessary implication, a direction to do1 nothing to overthrow the effect of that levy, and therefore a> command not to levy the senior execution upon it. Besides this, as is well answered by appellee, in no other certain way than by this attachment could the bank share pro rata with other creditors of James R. Butters in any surplus of proceeds of sale of the personal property levied upon, over and above the amount sufficient to satisfy its senior execution of February 14.

It is further objected to the order of distribution made by the circuit court, that the Everingham judgment for $5077.77'was-a judgment upon which he was entitled to receive a pro rata share of the fund derived from the sale of the personalty. Appellant bases his claim in this regard upon two grounds: One is, that section 37 of the Attachment act, without any ambiguity of language, provides, in express terms: “All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term or at the term when the judgment in the first attachment, upon which judgment shall be recovered is rendered, shall share pro rata, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise.”

The other ground relied upon is, that Everingham held the note upon which the $5077.77 judgment was rendered, as collateral security for the James R. Butters indebtedness to him, and that he should be permitted to enjoy the benefit of the right, for which he contracted, to pursue both his remedies, until the amount actually due him is paid, and that otherwise the security which he supposed he obtained is rendered nugatory, and the judgment which he holds as security is declared canceled.

Section 41 of the Attachment act provides that the act shall be construed in all courts in the most liberal manner for .the detection of fraud. In Hannibal and St. Joseph Railroad Co. v. Crane, 102 Ill. 249, it was held that our statute relating to .attachments, from its provisions and the spirit of the whole .act, is entitled to and should receive a liberal and not a strict ■construction. It is plainly the intention and policy of the .statute that all creditors who avail themselves of the right given to participate in the proceeds of the property attached, by recovering judgment in conformity with the requirements ■of the statute, shall be placed upon an equality, and that the proceeds of the property attached shall be distributed among them equally and impartially, in proportion to the amounts of their respective debts.

There was but one indebtedness due from I ames B. Butters to appellant, and that was merged in the judgment of $5420, and the order of distribution made by the court directed that such judgment should receive its pro rata share of the residue of the fund left after paying off the execution, which was a prior lien upon the fund. The judgment of $5077.77 against "William Butters and James B. Butters was a mere collateral security for the judgment against James B. Butters alone. The security it afforded consisted of the liability it imposed upon William Butters for the payment of the debt of James B. Butters. In respect to James B. Butters, it was but a second judgment for the same debt. It would be a plain evasion of the intendment of the statute, and a fraud and wrong upon the rights of other creditors, if one creditor should be allowed to recover separate judgments against the'common debtor upon divers evidences held for one and the same debt, and then be permitted to receive a pro rata dividend upon each of such judgments. Such an interpretation of the statute would be a prolific source of fraud and injustice, and would render inoperative the legislative intention. We think the order of the court in the premises was right.

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

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    John Fuller v. J. Victor Dauphin.

      Filed at Ottawa May 9, 1888.

    1. Botjndaby—as to land lying along a river or slough. The title of a riparian owner whose land is bounded by a navigable slough or arm of the Mississippi river, extends to the middle thread of the slough, and includes islands which are separated from the mainland, and which lie between the mainland and the center of the slough.
    2. Same—meandered line, whether a boundary line. A meandered line which is run along a water-course, merely for the purpose of ascertaining the quantity of land in the fraction lying upon a river or slough, is not a boundary line, when it appears only from the minutes of the survey, and does not appear upon the plats filed in the land office.
    3. Swamp land—embraced only such land as the United States owned. A conveyance under the swamp land acts can not pass title to any lands which had been conveyed by the United States previously to the passage of such acts.
    Appeal from the Circuit Court of Carroll county; the Hon. William Bbown, Judge, presiding.
    Mr. James Shaw, for the appellant:
    Riparian owners of land bounded by a stream not navigable, in the technical sense, hold the land to the center thread of the stream; and the water and soil under it, and stone quarried, and unsurveyed islands between the filum aqua and the shore opposite such land, all belong exclusively to such riparian owners. The same is true of all islands, peninsulas and low pieces of land, sometimes dry and sometimes submerged by the water, between such center of the stream and the shore of the adjoining land owner. Middleton v. Pritchard, 3 Scam. 510; Canal Trustees v. Haven, 11 Ill. 554; City of Chicago v. Laflin, 49 id. 172; Lovingston v. St. Clair Coimty, 64 id. 56; Railroad Co. v. Stein, 75 id. 41; Houck v. Yates, 82 id. 179;
      Canal Trustees v. Haven, 5 Gilm. 558; Braxon v. Bressler, 64 Ill. 448; Ice Co. v. Shortall, 101 id. 46; Trustees of Schools v. Schroll, 120 id. 509.
    Meander lines are not boundary lines, but are lines run along conveniently near the shore, for the purpose of estimating the area in acres of the land covered by the grant. They are not monuments. They are not evidences that the grant stops there. They are never monuments or boundary lines in grants by the United States, especially where they are not traced on the original plats, but only preserved in the field notes. And in running meander lines, the government surveyors always seem to have kept along the higher, dry banks, and not to have waded or gone over the low, wet peninsulas, or little islands near the shore. Middleton v. Pritchard, 3 Scam. 510; Lovingston v. St. Clair County, 64 Ill. 56; Houck v. Yates, 82 id. 179; 5 Gilm. 558.
    Under claim and color of title appellant may have paid taxes for the full period of seven years or more, under paper title purporting to convey; but the third requisite to make this a bar is fatally wanting. The possession attempted to be interposed to Fuller’s paramount, fee simple title, is not of the character demanded under either clause of the Limitation act, sought to be made available here. It is not the adverse possession required by the law. Scott v. Delany, 87 Ill. 148; Bolden v. Sherman, 101 id. 483; Turney v. Chamberlain, 15 id. 271; Kerr v. Hitt, 75 id. 51; Tyler on Ejectment, 900.
    Mr. J. M. Hunter, for the appellee:
    The evidence conclusively shows that the island in question was of the character of .swamp lands, and was so recognized and taken by the county of Carroll, and sold to one Sheldon, October 5, 1854, through whom appellee derives title. Railway Co. v. McDougal, 113 Ill. 603.
    Appellee has shown title under claim and color of title, made in good faith and deducible of record, and the payment of taxes for more than seven years. McDuffee v. Sinnott, 119 Ill. 449; Hurlbut v. Bradford, 109 id. 397; Flaherty v. McCormick, 113 id. 538; Holbrook v. Gouveneur, 114 id. 623.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action of trespass, by Dauphin against Fuller, for cutting timber, resulting in a verdict and judgment for the plaintiff for $100 damages. The land upon which the timber is alleged to have been cut, is described in the declaration as “the island in Plum river slough,” being part of the southwest quarter of section 10, and a part of the north-west quarter of section 15, township 24 north, range 3, east of the fourth principal meridian. The pleas were, not guilty, and a plea of liberum tenementum.

The chief question in this case seems to be one of boundary, merely. The locus in quo is an island of five acres, in what is called “Plum River Slough,” a large running slough or arm of the Mississippi river, marked as “Navigable Plum River Slough” on the original government plat and survey, and being immediately below the town of Savanna, in Carroll county, in this State.

„ The plaintiff’s claim of title is under the swamp lands acts of Congress and the State of Illinois, and a conveyance of the land, in 1854, by the county of Carroll, as swamp land, and also under the limitation statutes of the State. Defendant’s claim of title is under a patent from the United States to Luther Bowen, of the date of May 1,1845, conveying as follows: The west fraction of the south-west fractional quarter (west of Plum river) of section 10, in township 24, of range 3 east, in the district of lands subject to sale at Dixon, Illinois, containing 23-I1-^-acres, according to the official plat of the survey of said lands returned to the general land office by the surveyor general. The question is, whether this description embraces this island.

The land is described in the declaration as parts of two fractional quarter sections in sections 10 and 15, hut the proof only showed the cutting of timber on the north end of the island, located entirely on section 10. The land conveyed by this patent is described as “west of Plum river.” Plum river appears to be on the east and north of it, and this Plum river slough west of it. On the west of Plum river slough, and between it and the main Mississippi river, is a large island, surveyed and platted, and sold by the government by patents. The land in controversy was never surveyed or platted by the general government, but in surveying the south-west fractional quarter of section 10, township 24, range 3, a meander line was run along the east bank of this navigable slough until it came down to this low piece of land, where the meander went to the east, along a bank, to the higher table land. The meander line was not marked on the government plat of the section, but was run simply as a meander, and not as a boundary line.

Appellant insists that the patent for this west fraction of the south-west fractional quarter of section 10, conveyed all land up to the middle thread of this navigable Plum river slough, and which would include this island. The case of Middleton v. Pritchard, 3 Scam. 510, would seem to be decisive of this question in favor of appellant. It was there decided that the Mississippi river is not a navigable stream at common law, and that the title of a riparian proprietor whose lands are bounded by it extends to the middle thread of the stream, and includes islands which are separated from the mainland by sloughs. Such extension of the grant by the patent here would include this island, it lying east of the middle line of this navigable slough. It was also held in that case, that a meandered line which is run for the purpose of ascertaining the quantity of land in the fraction, is not a boundary. It was there said: “But it appears the surveyor of the government traced the courses and distances along the margin of the slough next the mainland, in order to estimate the quantity of land in the fraction, and which estimate did not include the locus in quo. But the plats in the land office and surveyor general’s office have no lines marking these courses and distances as a boundary. They are taken -from the field notes of meandering in the surveyor general’s office.” This was precisely the case here. Thorp, the county surveyor, testified: “This government meander line along the east bank of the swale I made simply from the field notes of the original government survey. On the original plat made by the government, in connection with these field notes, no meander line is actually marked out in any other way than simply by giving their courses and distances. There is no line made or given on the map. * * * According to the marking on the face of the plat, Plum river slough is the west boundary of this land.” The witness says further: ' “A meander line is a line run along water-courses. They are run for two purposes,—one is to show the course of the stream; another is to calculate the area or number of acres inside the meander, whatever that fraction may be. They are never marked on the maps or drafts, but are simply preserved in the field notes. They are only so preserved in the field notes of this survey.”

In Canal Trustees v. Haven, 5 Gilm. 558, in reference to a grant claimed to be bounded by the Des Plaines river, it was insisted that the stream was meandered, and a plat thereof returned to the surveyor general’s office, showing that the river was not included in the survey. The court, after remarking that such meandering appeared only by the minutes of the survey, and that neither the plats filed in the land or surveyor general’s office showed any lines marking the courses and distances along the margin of the river as a boundary of the adjoining land, say: “As there was, therefore, no marked line upon the plat by which the grant was made, defining and limiting the land granted to the margin of the stream, the whole argument founded upon such a supposed state of facts fails,” and then remark that a meandered line which is run for the purpose of ascertaining the quantity of land in the fraction is not a boundary, had been settled by the former decision in Middleton v. Pritchard. Houck v. Yates, 82 Ill. 179, re-affirms the decision that a meandered line is not a boundary line. The meandered line here does not include the locus in quo, but, according to the authorities cited, a meandered line is not a boundary line, and, as stated by the surveyor, according to the marking on the face of the plat by which the grant was made, Plum river slough was the west boundary of the land granted, which carried the grant to the middle of the slough, and embraced the land in controversy. Of course a conveyance under the swamp land acts could not pass title to anything which, previously to those acts, had been conveyed by the United States.

As respects appellee’s claim of title under limitation acts, by possession and payment of taxes under claim and color of title, there manifestly has not been shown any such possession of the land by appellee as will suffice for the acquisition of title under any statute of limitation, or otherwise.

The judgment will be reversed, and the cause remanded for further proceedings.

Judgment reversed.


author: Mr. Justice Craig

text:
    The Village of Marseilles v. George Howland.

      Filed at Ottawa May 9, 1888.

    1. Highways—commissioners of highways—of their powers within an incorporated city, town or village. Commissioners of highways have no jurisdiction whatever over highways or bridges within an incorporated city, town or village. They can not levy a tax to build or repair bridges within an incorporated town, and have no right to exercise any control or supervision over such bridges.

      2. Same — safe condition of streets—duty and liability of corporate authorities in respect thereto. The charter of a village conferred upon the municipality the power to regulate, grade, pave and improve the streets and alleys .within its limits, and to levy taxes and borrow money to improve the streets: Held, that under these powers it was the duty of the village authorities to keep all the streets and highways in the corporation in a reasonably safe condition for the use of the public, including the bridges therein, and this, notwithstanding the commissioners of highways may have assumed to control and repair the same, or any part thereof.
    3. Same—in case of a toll bridge becoming free to the public—duty devolving upon municipal authorities in respect to its safe condition. A toll bridge company sold its bridge to the commissioners of highways of the town in which it was situated, and the company ceased to exist. The bridge thereupon became free to the public, and, being located within an incorporated village, the village authorities had the right to control, improve and repair the same, to the exclusion of the commissioners of highways; and the assumption of the control of the bridge by the latter did not deprive the village of its rights, or relieve it from its duties in respect thereto.

      i. Same—dedication—acceptance—rights and powers of municipality— of its action as affecting its liability. Incorporated cities and villages have the power, by proper action, to refuse to accept an attempted dedication of a street or highway.
    5. But where a toll bridge has been constructed over a stream in a public ■ street, and the bridge company surrenders its franchise and rights, and the bridge becomes free to the public, and is used by the public, no formal acceptance of the dedication is required of the village in order to hold it responsible for the safety of the bridge, as would be required in the case of a new street.
    6. In such case, the village may avoid liability for not keeping such bridge in repair, but some affirmative action on its part is necessary to show that intention. It might condemn the bridge as a nuisance, and close it up, or vacate the street upon which it is located. If it takes no action, but suffers it to be used as part of the street, it must see that it is kept in a safe condition, or be liable for an injury from its neglect of duty.
    7. Same—the particular case. Under a private charter, a bridge company, by authority of law, built a toll bridge in a public street of an incorporated village, which it kept up for many years. Finally the company surrendered its rights, and the bridge was left to the free use of the public, the commissioners of highways assuming its control; but the same was suffered to get out of repair, whereby a person, without fault on his part, received a personal injury, for which he sued the village: Held, that the village, by suffering the bridge to be used by the public without seeing that it was safe, became liable for the injury.

      Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Mato & Widmer, for the plaintiff in error:
    There is no common law liability of a village in respect to the repair of bridges. Dillon on Mun. Corp. (1st ed.) sec. 579, p. 551.
    To charge it with the duty to repair, or make it liable for injuries for suffering a street to remain defective, there must be an acceptance of the dedication. Dillon on Mun. Corp. (1st ed.) sec. 505, p. 488; Folsom v. Town of Underhill, 36 Vt. 580.
    A town must accept a road dedicated to them before they will be bound to keep it in repair, and are liable, if they do not, for injuries to individuals arising therefrom. Hyde v. Town of Jamaica, 27 Vt. 443.
    In order to establish a dedication of land to the public for a way, proof of its acceptance as such by the public, acting through the proper authorities, is essential. (Insurance Co. v. Littlefield, 67 Ill. 369.) And so of a bridge. Town of Rutland v. Town of Dayton, 60 Ill. 67.
    The same principle,—that the burden is one to be voluntarily assumed by the proper authorities,—is applicable to bridges, such as this, not constructed under the authority of the village. City of Joliet v. Verley, 35 Ill. 63; City of Rockford v. Hildebrand, 61 id. 158; City of Alton v. Hope, 68 id. 169.
    The ninth instruction asked by the defendant ought to have been given. The question of acceptance, or not, is one of intention, to be inferred from the acts of the municipal authorities, and the facts established by the evidence; and such inference is one to be drawn by the jury, not by the court. Folsom v. Town of Underhill, 36 Vt. 580; Town of Rutland v.
      Town of Dayton, 60 Ill. 58; Town of Dayton v. Town of Rutland, 84 id. 279.
    Neither the fact that the bridge remained open to public travel, nor the appropriation of $800, nor both combined, constituted, per se, an acceptance of the bridge by the village, nor do they work a legal estoppel against it. Town of Rutland v. Town of Dayton, 60 Ill. 58.
    Messrs. Bull & Strawn, for the defendant in error:
    The. village of Marseilles was, by law, entrusted with the care, custody and control of the streets and bridges within its corporate limits. This doctrine has been so repeatedly held by the Supreme Court of this State, that it seems unnecessary to refer the court to authorities upon that question. We will, however, refer the court to Town of Mechanicsburg v. Meredith, 54 Ill. 84; Browning v. Springfield, 17 id. 143; Kreigh v. City of Chicago, 86 id. 407; Commissioners of Highways v. Board of Supervisors, Ill id. 527.
    That the corporate limits of the village of Marseilles extended to the center thread of the river, can not be questioned. Such has been the uniform doctrine in this, and, we might say, in all other States, in reference to all cities where a river forms the boundary line of the municipality. However, to avoid any question upon this subject, we will refer the court to the following cases: Village of Brooklyn v. Smith, 104 Ill. 429; Ipswich, Petitioners, 13 Pick. 431; Iron Works v. Tolland, 9 Cush. 492; Piper v. Connelly, 108 Ill. 646; Braxon v. Bressler, 64 id. 488; Cobb v. Lavalle, 89 id. 331; Railroad Co. v. Stein, 75 id. 42; City of Chicago v. Laflin, 49 id. 172; Canal Trustees v. Haven, 11 id. 554; City of Chicago v. McGinn, 51 id. 266; Dillon on Mun. Corp. sec. 94, note 2.
    This doctrine has been established by numerous decisions of the Supreme Court of this State. The same doctrine that applies to riparian proprietors applies to municipalities bounded upon a stream. Village of Brooklyn v. Smith, 104 Ill. 429;
      State v. Cantabury, 8 Fost. (N. H.) 195; State v. Gilmonton, 14 N. H. 467; Iron Works v. Tolland, 9 Cush. 492; Palmer v. Hicks, 6 Johns. 133. And see note 2 to see. 124 of Dillon on Mun. Corp.
    Like a sidewalk upon the streets, the village could not be compelled, in the first instance, to build it. If a private individual builds one, and it becomes of public utility, the village must either condemn it as a nuisance, and cause it to be removed, or, by permitting it to remain, they assume a liability for its reasonably safe condition. So with a bridge across a ravine that may be within the limits of a city or village. A bridge may be constructed upon a public street leading across such ravine, by a private individual, for his own personal benefit. Still, if it be used by the public, the city or village thereupon must see to it that it is safe. It is true they can condemn it as a nuisance; but if they permit it to remain, their liability attaches. Angell on Highways, (2d ed.) sec. 164; Town of Mechanicsburg v. Meredith, 54 Ill. 84; Kreigh v. Chicago, 86 id. 407.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by George Howland, in the circuit court of La Salle county, against the village of Marseilles, to recover for an injury received on the 10th day of September, 1883, while crossing the Illinois river, which resulted from the falling of a part of the bridge into the river.

The village of Marseilles was incorporated in 1861, under ■a special charter, and is located in the town of Rutland. The Illinois river is the southern boundary of the village, and is ■also the boundary line between the towns of Rutland and Fall River, the latter lying south of the former. In 1865 a bridge was erected across the river at the point where Milwaukee street, (now Main street,) located in the village, intersects the river. The bridge was erected by the Marseilles Bridge Company, a corporation organized under a special law, enacted February 13, 1865. Section 3 of the act is as follows:

“Said company is hereby authorized and empowered to construct and maintain a bridge over and across the Illinois river,, at or near Marseilles, in the county of La Salle, from the point where Milwaukee street, in the old town of Marseilles, intersects said river on the north bank, to that point on the south bank of said river (upon the west half of the south fraction of the north-east quarter of section 24, township 33 north, range 4, east of third principal meridian,) .where the public highway intersects said river, or within forty rods thereof, east or west; and for the purpose of erecting and maintaining such bridge, and all the embankments, piers, toll-houses and dwelling houses for toll collection, and such other works as may be necessary for said bridge, the company may use so much of said Milwaukee street, and of said public highway, and of the bed and shores of said Illinois river, and of the materials, stone and earth thereon, as may be necessary.”

The fourth section empowered the company to collect tolls; The fifth section required the company to keep the bridge in repair, and also required it to allow a speedy passage to all travelers, with their animals and vehicles.

At the January meeting, 1878, of the board of supervisors of LaSalle county, $3500 was appropriated to aid the town of Eutland in purchasing the bridge. The town of Eutland appropriated $3200 for the same purpose. The village of Marseilles, on February 5, 1878, appropriated $800 to the commissioners of highways of the town of Eutland, for the same purpose. Money was also raised by private subscription, and on the 25th day of March, 1878, the bridge company sold and conveyed, for a consideration of $8836, to the towns of Eutland and Fall Biver, all its “right, title, interest and privileges, including its franchises, and the bridge and appurtenances, and approaches, across the Illinois river, at Marseilles, between the towns of Eutland and Fall Biver.” From the date of the purchase until after Howland was injured, the commissioners of highways of the town of Butland made all the repairs on the bridge which were made, and assumed to have the charge and control, so far as was required to keep the bridge in proper repair for the use of the public. While that portion of the bridge which lay north of the middle of the Illinois river was within the corporate limits of the village of Marseilles, the village authorities took no steps in regard to the management or repair of the bridge prior to the injury received by Howland; and it is claimed that the village never accepted the bridge, and was under no legal obligation, at the time of the accident, to keep the bridge in repair.

At the time of the accident it is apparent that the bridge was unsafe and in a dangerous condition, and, so far as appears, the plaintiff was not guilty of negligence which contributed to the accident. The only question, therefore, to be determined is, whether that portion of the bridge which was within the corporate limits of the village was a part of the highway of the village, which it was bound to keep in repair.

The charter conferred upon the village the power to regulate, grade, pave and improve the streets and alleys in the town, and to levy taxes and borrow money to improve the streets. Under the powers conferred by the charter, it was the duty of the village to keep all the streets and highways in the corporation in a reasonably safe condition for the use of the public. Ho importance is to be attached to the fact that the commissioners of highways of the town of Butland assumed to control and repair the bridge after the purchase from the bridge com-. pany. Commissioners of highways have no jurisdiction whatever over highways or bridges within an incorporated city, town or village located within their town. They can not levy a tax to build or repair bridges within an incorporated town, and they have no right to exercise any control or supervision over such bridges. The People ex rel. v. Supervisors, 111 Ill. 527, and the cases therein cited, are clear and conclusive upon this question. Whatever, therefore, may have heen done hy the commissioners of highways of Rutland in repairing the bridge, was done without authority, and can have no hearing on the ease.

The contract entered into between the bridge company and the town of Rutland on the 25th day of March, 1818, changed and converted the toll bridge, with its approaches and appurtenances, into a free bridge. Upon the execution of the contract all power and authority of the bridge company over the bridge and its approaches ceased, and the bridge became free to be used by the public as a public highway, in the same manner as all highways in the country are opei^for public use. When the bridge company parted with its franchises, and all power and control over the bridge, and contracted that it should be forever thereafter a free bridge, what duty then became imposed upon the village of Marseilles as to that part of the bridge within the corporate limits of the village ? The question is an important one, and one, tooj not entirely free from difficulty. Cities, incorporated towns and villages no doubt have the power, by proper action, to refuse to accept streets or highways which may be attempted to be established by dedication. This is a necessary power to prevent land owners from compelling such incorporations to assume the expenditure of large sums of money in making and improving streets or highways not necessary or demanded for public use. But that is not the question involved in this record.

In looking at the evidence, which it is proper to do, in order to determine whether the law was properly laid down in the instructions to the jury, it appears that Milwaukee street was one of the streets of the village extending to the river, before the village was incorporated under its special charter, in 1861. One witness testified, that after the village organized under its special charter, Milwaukee street was changed to Main street. “There was an old ford below where the bridge is. Prior to the time the bridge was built, there was travel by the public down what is called Main street. They turned off a little to the west just before they got to the river.” It also appears, from an examination of the evidence, that when the bridge •company erected the bridge, there was a slough or bayou, extending from the river north of the bridge, to a point on the river south of the bridge. Doubtless this bayou or slough had •caused the travel to turn off a little to the west. When the bridge was built, this slough or bayou was filled up in building the approaches to the bridge, thus bringing Main street, or Milwaukee street, as it was originally called, directly down to the bridge, as it was originally laid out on the plat of the village. Here was a public highway established and used by the public prior to 1861. The building of the bridge extended the highway from the bank to the center thread of the Illinois river. Now, a part of this highway, under an act of the legislature, was taken and devoted to a somewhat different use,— to a toll bridge. After being devoted to that use from 1865 to 1878, the bridge is purchased, and freed. The bridge and its approaches are thrown open to the public, and the public ■enter upon the use of it as a public highway. Under such circumstances, was any formal acceptance on the part of the village required, in order to hold it responsible for the safety ■of the highway ? We think not. When the bridge company relinquished all rights acquired under its charter, all that part ■of the highway which it had controlled under the act incorporating it, passed back to the village of Marseilles, and became subject to its control. It occupied the same relative position to the village that it did before the bridge company was incorporated, and as Main street had been accepted by the village as a public highway years before, and used and treated as such, no new acceptance was required, as is the case where a street or highway is for the first time dedicated to the use of the public.

It may be said the bridge could not be forced on the village without its consent. We are willing to concede that the village was not bound to maintain the bridge as a part of the public highway unless it saw proper to do so. It had the-power to condemn the bridge as a nuisance, and close it up-It might, if thought advisable, vacate the street. But no action of this character was taken. The village took no action whatever manifesting an intention that the bridge should not housed as a public highway. On the other hand, it voluntarily-appropriated $800 out of its own treasury to free the bridge,, and make it a public highway free for all persons to travel over it; and after taking this action, the village then said nothing and did nothing, but now seeks to escape liability upon the ground that it did not accept the bridge; that it had no control over it; that the entire management and control rested upon the commissioners of highways of the town of Rutland. This position can not be sustained. The charter of the village conferred the power to control and repair its highways and streets, and a municipal corporation can not, as held in Kreigh v. City of Chicago, 86 Ill. 407, divest itself of a power which its charter confers. The law imposed upon the village the duty to keep its streets and bridges in reasonable repair, in order that the public might safely pass over them. That duty could not be shifted upon another. The fact that the bridge was not built by the village, does not relieve it of responsibility. An incorporated town is not bound to build a sidewalk upon a public street, but if one is constructed by an individual, and is used by the public with the knowledge of the town authorities, the law would require them to remove the walk or assume responsibility for its reasonably safe condition. The same may be said of a bridge constructed within the limits of an incorporated town. Requa v. City of Rochester, 45 N. Y. 129, is a case in point. It is there said: “But if a volunteer, instead of the city, had, seeing the need of it, put the bridge there, after it was placed there, and by the city allowed to remain for years, did it not adopt it and make it its own? Permitting it to remain as a usual and •suitable means of overcoming a difficulty it had caused, did it not invite the citizen to use it ? And did not the city thus ■come under the duty that he should use it with safety ? In our .judgment it did.” See, also, Heacock v. Sherman, 14 Wend. 48; Manderschid v. City of Dubuque, 29 Iowa, 73; Angell on Highways, sec. 257.

Objection has been made to the ruling of the court on the instructions, but what we have said obviates the necessity of .going over the instructions. The instructions, as a whole, are •quite favorable to plaintiff in error. Indeed, if error was committed, the error was in favor of the defendant, and of this it •can not complain.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Eugene Dougherty v. The People of the State of Illinois.

      Filed at Ottawa May 9, 1888.

    1. Criminal law—delay in bringing accused to trial—of his right to a <discharge. Under section 18, of division 13, of the Criminal Code, otherwise known as section 438 of the Eevised Statutes of 1874, the prisoner is •only entitled to be discharged and set at liberty in case the delay to try him does not happen on his own application.
    2. Same—presumption as to who ccmsed delay in trial, in absence of ■bill of exceptions. A defendant asking a discharge on the ground that four terms of court have elapsed without a trial being had, should show, by bill of exceptions, that the failure to try his case was not due to his own application. In the absence of anything to show to the contrary, it will be presumed that what the trial court did, in denying a motion for a discharge, was rightly done.
    3. In this case, the defendant was indicted at the September term, 1882, •of the Criminal Court of Cook county, the terms of which are monthly, and at the same term was arrested and pleaded not guilty. The record showed 4hat at the November term the case was continued by agreement, and that at the December term it was continued on the application of the defendant, and that at the May term, 1883, it was, on the motion of the State’s attorney, stricken from the docket, with leave to reinstate, and was reinstated on December 13,1886, when the defendant entered a motion to vacate the order of reinstatement, which was overruled. On December 23, 1886, defendant made a motion to be discharged, which motion was continued to the next term, and then overruled, and the defendant was tried and convicted at the January term, 1887. There was no bill of exceptions preserved in the record showing that the failure to try the case at the January, February, March or April term, was not due to the defendant's own motion: Held, that this court could not say whether there was error in refusing to discharge the defendant.
    Writ of Ebbob to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Nolan & Munhall, for the plaintiff in error.
    Mr. George Hunt, Attorney General, for the People.
   Mr. Justice Magruder

delivered the opinion of the Court:

The terms of the Criminal Court of Cook county are held on the first Monday of every month. Plaintiff in error was indicted for burglary at the September term, 1882, of that court. He was arrested and entered a plea of not guilty at that term. The record shows that at the November term, 1882, the ease was continued by agreement; that, at the December term, 1882, it was continued on the application of the defendant ; that at the May term, 1883, it was, on motion of the State’s attorney, stricken from the docket with leave to reinstate; that it was reinstated on December 13, 1886, on motion of the State’s attorney; that, on December 22, 1886, . defendant made a motion to vacate the order of reinstatement, which motion was overruled; that, on December 23, 1886, defendant made a motion to be discharged and set at liberty, which motion was continued to the next term and then overruled ; that, at the- January term, 1887, defendant was tried, convicted and sentenced to three years in the penitentiary.

It is claimed on behalf of plaintiff in error that the trial court erred in overruling his motion to be discharged and set at liberty, on the ground that, after the continuance on defendant’s motion from the December term, 1882, to the January term, 1883, four full terms, to-wit: the January, February, March and April terms, 1883, passed without a trial, and that, under section 18 of division 13 of the Criminal Code, otherwise known as section 438 of the Revised Statutes of 1874, the defendant was entitled to be set at liberty upon his motion if made at any time during the April term, 1883, or at any time during the May term, 1883, up to the time the cause was stricken from the docket, which motion, by reason of the ease having been so stricken from the docket, he was unable to make until the reinstatement took place in December, 1886.

Under the section referred to, the prisoner is only entitled to be set at liberty in case the delay does not happen on his own application. If the delay during the four terms mentioned happened on the application of the defendant himself, he can not complain that he,did not have a trial at as early a date, as the statute requires.

In the present case, there is no bill of exceptions in the record, and, therefore, we are unable to say that the failure to try the cause was not due to the defendant’s own application. In the absence of anything to show to the contrary, it will be presumed that what the trial court did was rightly done. The plaintiff in error can not claim the benefit of the section relied on, because the record does not show that his case comes within the provisions of that section.

The judgment of the Criminal Court of Cook county is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Kirk Hawes, Judge, v. The People ex rel. Emilie Pulver.

      Filed at Ottawa May 9, 1888.

    1. Jurisdiction of Appellate Courts—constitutional law. Under the constitution, the Appellate Courts have only appellate jurisdiction, and it is not competent for the legislature to clothe them with any other kind of jurisdiction.
    2. Same—in case of mandamus. The Appellate Court has no jurisdiction of an original action by mandamus. So when that court has not acquired jurisdiction in a case, by appeal or writ of error, it will have no jurisdiction of a proceeding by mandamus to compel a judge of the trial court to sign a bill of exceptions.
    3. Where the Appellate Court has acquired jurisdiction of a suit by appeal or writ of error, it may, by the action of mandamus, compel the judge of the trial court to sign and seal a bill of exceptions on a proper showing. Such action in that case would be in aid of the appellate jurisdiction of that court.
    Appeal from the Appellate Court for the First District.
    Messrs. Moses & Newman, for the appellant.
    Messrs. Kraus, Mayer & Stein, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 9th day of November, 1887, the People of the State of Illinois, on the relation of Emilie Pulver, filed in the Appellate Court for the First District a petition for a mandamus against the Hon. Kirk Hawes, as judge of the Superior Court of Cook county, to compel him to sign a bill of exceptions in a certain cause lately heard before him in said court, wherein the said Emilie Pulver was plaintiff, and the Rochester German Insurance Company was defendant. No appeal had been taken in the case to the Appellate Court, nor was it otherwise, or for any purpose, pending in that court. • The respondent appeared, and entered a motion to dismiss the petition, on the ground that the court had no original jurisdiction in mandamus. The court reserved the motion for the hearing. The issues Tere then made up in the usual Tay, and the cause Tas heard upon the petition, ansTer, replication and proofs, resulting in the entry of a final order aTarding a peremptory Trit of mandamus, directing the respondent to sign and seal the bill of exceptions in question, in conformity Tith the prayer of the petition. The respondent brings the case here for revieT.

Section 11, article 6, of the constitution, provides as folloTS : “After the year 1874, inferior appellate courts, of uniform organization and jurisdiction, may be created in districts formed for that purpose, to Thich such appeals and Trits of error as the General Assembly may provide may be prosecuted from eircuit and other courts, and from Thich appeals and Trits of error shall lie to the Supreme Court in all criminal cases, and ■cases in Thich a franchise, or freehold, or the validity of a statute is involved, and in such other eases as may be provided by laT. Such appellate courts shall be held by such number of judges of the circuit courts, and at such times and places, and in such manner, as may be provided by laT; but no judge shall sit in revieT upon cases decided by him, nor ■shall said judges receive any additional compensation for such ■services.”

This is the only provision of the constitution relating to the jurisdiction of the Appellate Courts, and it folloTS, that That-■ever poTers they may laTfully exercise are referable to it as their source. It is a grant of appellate jurisdiction only, and it is not competent for the legislature to clothe these courts, as such, Tith any other kind of jurisdiction.

It is a familiar principle, that every grant of poTer carries Tith it such implied poTers as are necessary to the exercise of the poTers expressly conferred; yet this principle can have no application to a case like the one before us. The present suit is an original action, and is not in any sense in aid of or in furtherance of the court’s appellate jurisdiction. If, upon the facts disclosed, the action would lie, it might have been brought either in this court or the circuit court, and when prosecuted to a successful termination, the judgment, if desired to be reviewed, would, for the purposes of an appeal to the Appellate Court, be precisely in the same position as if the bill of exceptions had been signed and sealed by the judge without suit, and the petitioner, after all, would be under no obligation to take the case to the Appellate Court. It might or might not be taken there, which clearly shows that the action of mandamus, under the circumstances, could not be regarded as necessary to or in furtherance of its appellate jurisdiction. If the case to which the petition relates had been pending in the Appellate Court by appeal or writ of error, quite a different, question would be presented. In that case no reason is perceived why the action of mandamus would not lie. Such action would then be in aid of the court’s appellate jurisdiction. Indeed, the eleventh section of the Appellate Court act expressly authorizes the issuing of a writ of mandamus for such purpose. But this is only declaratory of what the rule, under the constitution, would have been without it. It is a mere expression of what would have been implied from the establishment of, these courts.

As the judgment in this case will have to be reversed on the ground the Appellate Court improperly assumed jurisdiction therein, it will not be proper to consider the other questions discussed in the briefs.

The judgment of the Appellate Court is reversed, and the cause remanded, with directions to that court to quash the writ and dismiss the petition.

Judgment reversed.