« ForrigeFortsett »
Or under the circumstances shown in this Case, are OVerruled by the COurt below, this court Will not review the action of that court in the premises, even though it may be that there is among such legal objections Some objection that is meritorious, and which should have been sustained, had it been properly presented. The better practice for appellant to have followed would have been to have ascertained what legal objections might properly be made by him in this proceeding, and to have so framed his objections as to make them applicable to the conditions shown by the record, and not to have filed the S0-called “blanket form” Of objections, with the hope and belief that Some One of the numerous objections Specified therein might cover some valid objection thereafter to be discovered. In Whatever form his Objections appeared, it WaS his duty, if he appeared by attorney, to be represented by counsel who would ascertain what the objections filed Were and be able to advise the court upon What ground the objections should be sustained. The filing of objections in the so-called “stereotype blanket form,” which is a long list of Objections general in character, so Worded as to cover every possible legal objection that can be expected to arise in a special assessment proceeding, Without regard to what Objections find Support in the facts, and which have been frequently filed in proceedings of this character arising in Cook county, does not meet With the approval of this court. The practice herein above Suggested as the better practice for appellant to have followed is the one which should be adopted in each instance. In accordance with the law, the questions whether the property of objector was assessed more than it would be benefited, and whether it was assessed more than its proportionate share of the cost of the improvement, were tried by jury, and the verdict was for appellee. The ordinance originating the improvement did not provide for connecting the Water mains, Which Were to be laid to the lawn hydrants, with other water mains or with a water supply, and did not provide for connecting the electric cables with any other cable or source of electric current; and it is assigned as error that the court wrongfully allowed petitioner to show, by its engineer and by an ordinance which was passed during the trial, that these connections were to be made so that the property OWner Would derive the benefits which Would accrue from the use of the water supply which might be carried through the mains and the electric current which might be carried over the cables, in accordance with the purpose Which animated petitioner in seeking to make the improvement. In Gray V. Town of Cicero, 177 Ill. 459, 53 N. E. 91, the improvement under consideration was an outfall sewer, and the ordi
nance provided for openings on both sides for the purpose of connections with lateral sewers or drains, and it was there held proper to introduce other Ordinances proViding for the construction of lateral branches of the Sewerage System, for the purpose of showing good faith by the city in carrying out the provisions of the ordinance for lateral connections. Following the reasoning of that opinion, we think the evidence here objected to was properly admitted. It merely went to show that the property OWner Would obtain the benefits Which the Special assessment Ordinance Was designed to COnfer. It is then said that instruction I, given at the instance of petitioner, Was erroneous, because in stating the issues to be tried it recites, in a preliminary way, that the assessment is levied by the authority of the board, which is said to be equivalent to saying to the jury that it was lawfully levied. Inasmuch as the jury was not required to determine whether the assessment was lawfully levied, the instruction was not rendered harmful by that recital. Instruction K is objected to because it tells the jury that the municipal authorities are the sole judges of the necessity for the improvement, and that the question of its necessity is not for the jury. This was a correct statement of the law. Cram v. City of Chicago, 138 Ill. 506, 28 N. E. 757. Instruction O is objected to because it. advises the jury that, if the value of the property be increased for any use for which the property is adapted, the property will be benefited. This is Said to be erroneous for the reason that the Value of the property for Some purposes might be entirely destroyed, but that if it is benefited for any purpose the jury should then regard it as receiving a benefit from the improvement, even though the property would be of less value after the improvement than before. The instruction is not properly the subject of this criticism. Its meaning is that the improvement will benefit the property if it increases its value. Under that instruction the jury would not be warranted in finding that the property would be benefited if they believed that it would sustain damages in excess of the benefits it would receive. The instruction correctly stated the rule laid down in Clark v. City of Chicago, 166 Ill. 84, 46 N. E. 730. Other objections made to the action of the Court in giving and refusing instructions are equally without any proper basis in the law. We have examined the instructions given, and are satisfied that the jury were accurately and fairly instructed in reference to the questions which were before them for determination. We have in this opinion disposed of all the material questions arising upon this recOrd Which Counsel has discussed in his brief and argument. It is true other alleged errors are enumerated in the statement preceding the brief and argument, but as counsel has not attempted to demonstrate by reference to the abstract that such other errors exist, or to show that they were prejudicial in character, but has merely recited the existence of Such other errorS in his statement, and as such other errors are not mentioned or relied upon either in the brief or argument they must be considered as waived. Keyes V. Kimmel, 186 Ill. 109, 57 N. E. 851, and cases there cited.
The judgment of the circuit court Will be affirmed.
(222 Ill. 522.)
IDESLAURIES et al. v. SOUCIE et al. (Supreme Court of Illinois. Oct. 23, 1906.)
1. CERTIORARI-DISCRETION AS TO GRANTMOTION TO QUASH. A writ of certiorari is not granted as a writ of right, and may be granted or denied in the discretion of the court according to the showing made in each particular case; it may also be quashed and the petition dismissed on motion filed after its issuance, and before return, on the ground that public detriment and inconvenience would result from quashing the original proceedings the validity of which is attacked by the petition and such facts may be shown by extrinsic evidence. [Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Certiorari, §§ 15, 154, 158.]
2. SAME—WRIT AGAINST DRAINAGE DISTRICT —APPEAL-WAIVER OF DEFECTS. In proceedings for a writ of certiorari to set aside the organization and proceedings of a drainage district, the petitioners cannot on appeal deny the sufficiency of a notice of a meeting which they expressly averred in their petition was held on proper notice.
3. SAME—DEFENSES—PUBLIC DETRIMENT. A writ of certiorari cannot be used to test the legality of the organization of a drainage district on technical grounds after the lapse of several months, during which time it has been in operation, made contracts, and levied taxes, with the full knowledge of the petitioners, and where great public detriment would result from the quashing of the proceedings, and no errors are shown which will cause substantial detriment to the petitioners.
Appeal from Appellate Court, Second District.
Petition by John Deslauries and others against Treffly Soucie and others for writ of certiorari. Petitioners appeal from a judgment of the Appellate Court (122 Ill. App. 81), affirming a judgment of dismissal. Affirmed
Appellants filed a petition in the circuit court of Kankakee county for a common-law writ of certiorari directed against appellees, drainage commissioners of Union District No. 1 of the towns of Manteno and Sumner, in said county, commanding that they certify a complete transcript of the record and papers relating to the attempted organization of the Said district; that the Court might inspect such records and proceedings and Set them aside if found irregular. The writ was issued on a vacation order. The
defendants moved to quash the writ and dismiss the petition. The motion is set out in the record, and states that various acts had been performed before the filing of the petition assuming the validity of the organization, that the quashing of the Organization would result in great public inconvenience and detriment, and that no injustice had been done the petitioners. On a hearing before the court on this motion it appeared that the petition for the organization of the district was filed June 20, 1903; that various meetings were held, and at an adjourned meeting July 20, 1903, certain changes Were made in the boundaries of the district taking out certain lands and including certain others not mentioned Originally, among which were those of William Graham and Robert Parker. It is claimed that the record does not affirmatively show notice to Parker and Graham. At an adjourned meeting July 30th the district was Organized, and an engineer previously employed made a detailed report of the Survey of the district and an estimate of the cost, With Specifications. The Commissioners made contracts for right of way with various property OWners and commenced proceedings for condemnation against others, Some of which were settled by agreement, and others tried and damages awarded. Later on the land in the district was classified, and notice given that the commissioners would hear objections to the same. A hearing Was had in accordance with such notice and objections overruled. On November 17, 1904, the commissioners made a special assessment against the highways, and in February, 1904, One against the lands. On March 2d the Commissioners made an order for the collection of the assessment, to be paid in thirty days. March 12th an election was held, at which appellant Deslauries and appellee Graham voted, and at which Graham was elected commissioner. This petition for writ of certiorari was filed on April 28, 1904. After hearing, the motion to quash the writ was allowed and petition dismissed. On appeal to the Appellate Court the judgment of the lower court was affirmed.
W. R. Hunter and Granger & Granger, for appellants. A. E. Smith and Charles B. Campbell, for appellees.
CARTER, J. (after Stating the factS). Appellants have not complied with rule 15 of this court (68 N. E. vii) by filing a copy of the opinion of the Appellate Court. We would be justified in dismissing the appeal on this ground alone, but prefer to consider and dispose of the case on the briefs and record presented.
The writ of certiorari is not granted as a writ of right, and may be granted or denied in the discretion of the court, according to the showing made in each particular case. Trustees of Schools W. School Directors, 88 Ill. 100; Commissioners of HighWayS V. Barnes, 195 Ill. 43, 62 N. E. 775; 4 Ency. of Pl. & Pr. p. 31. Being addressed to the Sound judicial discretion of the court, evidence extrinsic to the record may be very properly received before issuing the Writ, to show that no injustice has been done; for On the return of the Writ the court Will only look to the record. Board of Supervisors V. Magoon, 109 Ill. 142; Hyslop v. Finch, 99 Ill. 171; Sampson V. Commissioners of Highways, 115 Ill. App. 443; School Directors V. School Trustees, 91 Ill. 96. After the Writ has been issued, On motion to quash the Writ and dismiss the petition extrinsic evidence may then be heard, not for the purpose of contradicting or enlarging the record, but to show that public detriment and inconvenience might result from quashing the original proceedings. 45 N. E. 415; Sampson v. Commissioners of Highways, Supra. Appellants insist that the record introduced below, Of the proceedingS of the commissioners, can only be looked to here. But the case Was not heard On this theory. There is nothing in the testimony to ShoW that the evidence introduced by the appellees is the entire record that would have been made a part of the return to the writ. The writ was disposed of in the trial court on motion to quash. We do not think the trial court erred in so doing without first requiring the defendants to make return to the writ. Appellants argue that there was a defective notice as to one of the meetings of the commissioners, in that there was a blank in the copy offered in evidence where the date of the meeting should have appeared. They are not in a position to urge that point at this time, as they expressly averred in their petition for the writ of certiorari that a proper notice had been given of the meeting in question, and they cannot for the first time, on appeal, urge that point. Chapman V. Drainage Com’rs, 28 Ill. App. 17. The principal contention of appellants is that the record in this case does not affirmatively show the required notice to Graham and Parker, Who Were not signers of the original petition, and whose land was afterwards taken in at an adjourned meeting. Neither Graham nor Parker is here Objecting to the validity of the organization of the district. To the contrary, Graham is one of the drainage commissioners, and is here contending for the legality of the proceedings. It is urged that on the authority of Sanner V. Union Drainage District, 175 Ill. 575, 51 N. E. 857, such question can be raised in this manner by any interested parties. The court evidently allowed the motion to quash, on the ground that the district had been organized and in Operation for SOme time, and that contracts had been made, expenses incurred, taxes levied, and presum
Drainage Comrs. V. Volke, 163 Ill. 243,
ably collected—in short, that it had been carrying out the purposes of its organization as a going district for months, and therefore the common-law Writ of certiorari could not be used to test the legality of its existence. Lees v. Drainage Com’rs, 125 Ill. 47, 16 N. E. 915; Sanner v. Union Drainage District, Supra; School Directors v. School Trustees, supra. From the time the petition for this district was filed, June 20, . 1903, until the petition for the Writ of certiorari, April 28, 1904, steps were continuous for organizing the district and carrying on its business. Manifestly, from the evidence in this record all three appellants were cognizant of the entire proceedings. One of them voted at the election for drainage commissioners; another entered into a contract for right of way across her lands, and the third waived all claim for damages. The lack of notice to Graham certainly cannot be raised by them, as he is here contending for the legality of the proceedings. The other landowner, Parker, has not complained because of any lack of notice. If there be a defect in the notice of such nature that it might be raised by appellants, such defect could as well be presented by a writ of quo Warranto, and the district could then prove actual notice, even though such notice was not shown by the record. On the facts presented here, this case comes clearly within the doctrine in School Directors V. School Trustees, supra, where, by reason of lapse of time, acquiescence of the parties complaining, incurring debts, levying taxes, etc., it would have been an abuse of the sound legal discretion of the court and a great public detriment to have quashed the proceedings. The errors, at most, are technical and harmless, so far as appellants are concerned, and are not ShoWn to be Such as WOuld cause substantial injustice to any one.
The judgment of the Appellate Court will accordingly be affirmed.
3. WITNESSES - TRANSACTIONS WITH DECEDENT—CALLING BY ADVERSE PARTY. Under Hurd's Rev. St. 1905, p. 118, c. 3, § 81, providing that when any executor shall state on oath to any county court that he believes that any person has in his possession property of the estate, the court may require such
person to appear before it and examine him,
and chapter 51, § 2, declaring that no party to any civil suit shall be allowed to testify therein of his own motion, unless when called as a witness by the adverse party so suing or defending, where an executor introduced a defendant's testimony taken at the hearing on citation in the probate court, he was not thereby called as a witness by the adverse party, and his incompetency as a witness concerning transactions with decedent aside from admissions made on his examination was not affected. [Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, § 722.] 4. SAME. Under Hurd's Rev. St. 1905, c. 51, § 2, permitting an interested person to testify to facts occurring after the death of a deceased person, the calling of a witness as to the possession of certain bonds of decedent did not make him a witness as to all questions. [Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, § 722.] 5. EVIDENCE–PRODUCTION OF INSTRUMENTSSECONDARY EVIDENCE. In a suit by an executor to recover certain property of his decedent, it was proper to exclude testimony concerning a memorandum in the handwriting of deceased in possession of counsel for the executor, where the production of the original was not insisted on. [Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 642.] 6. SAME—DISCRETION OF COURT. In a suit by an executor to recover property of deceased, where the executor was shown a copy of a memorandum made by decedent, which was claimed to be the same copy that had been previously shown to him, and was asked if it was not the same, the court did not abuse its discretion in refusing to permit him to answer, and in refusing to permit it to be introduced after testimony by defendant that it was the same copy he had shown witness: there being no offer of the original memorandum.
[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 642.]
Appeal from Appellate Court, First District,
Action by Dominick Egan, executor of the Will of Thaddeus J. Butler, deceased, against Patrick J. Sexton. On the death of defendant, his executor, the Merchants’ Loan & Trust Company, was substituted. From a judgment of the Appellate Court affirming a judgment for plaintiff, the defendant appeals. Affirmed.
This is an action in trover, brought by appellee in the circuit court of Cook county against Patrick J. Sexton (who died pending the trial and Whose executor Was Substituted as defendant) to recover certain bonds of the face value of $29,000 and a promissory note for the sum of $5,000, payable to the order of Thaddeus J. Butler and made by John Ireland. Defendants pleaded general issue. Jury was waived, and the cause submitted to the court for trial. The court found for the plaintiff, assessing his damages at $34,378.52, and entered judgment on the finding.
Dr. Thaddeus J. Butler was a Catholic priest of the diocese of Chicago, and had officiated as rector of St. John's parish, in that city, from 1887 until shortly before his death June 23, 1897, he left Chicago for Rome, Italy, expecting to be there consecrated as Bishop of Kansas. He died at Rome, July 16, 1897. He made his will June 23, 1897, the day he left Chicago. The following bequests were made by the will: Testator's brother, Patrick T. Butler, $5,000 for the use of the Church of Immaculate Conception, Chicago; Miss Nellie Cunningham, $5,000 for the convent of Rathfarnum, Ireland, conditioned on certain life payments to testator's Sister; testator's brother, ITrancis J. Butler, $1,000, or £200, in case he surVive testator; the Rev. Dominick Egan, $2,000 to be expended for masses for the repose of testator's soul; Archbishop P. A. Feehan, for the use of the Church of St. James at Rockford, Ill., of which testator was formerly pastor, $3,000. The last paragraph of the Will reads as follows: “The rest, residue and remainder of all my real and personal estate I give, devise and bequeath the Same unto the Rev. Donninick Egan, of St. Stephen's Church, Chicago, my very dear and trusted friend. I hereby appoint the said Rev. Dominick Egan executor of this my will, and ask that no bonds be required of him.” At the time of testator's death his will was in a vault in the Rookery Building, in the city of Chicago. Miss Margaret McNamara, his housekeeper, was custodian Of the Will and delivered it to the Rev. Egan, informing him that he was appointed executor. In 1895 testator rented box 5,294 from the National Safety Deposit Company in the First National Bank building of Chicago. This box was leased to Butler in his own name and P. J. Sexton Was named as deputy. The lease of the box was afterwards changed on June 24, 1896, at the testator's request, to run to him and Sexton jointly. The testator had a key to the box after the lease was changed. This key he had when he left Chicago for Rome. Sexton testified that he had a key to the box in March, 1897. He also testified that he had a box of his own in another safety vault and testator had other boxes in other vaults. There is nothing in the evidence to indicate that Sexton ever kopt any of his own papers or documents in box 5,294, Or that he ever opened the box until after Dr. Butler's death. He testified that he was at the box Once in March, 1897, with the testator. After Dr. Butler's death Sexton Stated that the third day following the decease he opened the box and found a large envelope marked “Instructions,” in Dr. Butler's handwriting; that in this envelope there was some correspondence between Dr. Butler and Archbishop Ireland, With a note of the latter for $5,000; that there was written on the envelope: “Friend P. J. Sexton: Destroy this correspondence in the event of my death,” and “$5,000-No,” below. He found in the box another large envelope, apparently containing securities, on the back of which were memoranda Scratched both ways; the purport of which Sexton had no special recollection. Sexton claimed that Dr. Butler, Shortly prior to his death, gave him the bonds and note. The probate court found the bonds and note a part of Dr. Butler's estate. On appeal from the decision of that court the matter Was heard in the circuit court and decided in the same way. That cause was appealed to the Appellate Court and error confessed as to the description of the bonds, but denied in all other respects. This suit was then started in the circuit court, and judgment rendered as heretofore stated and affirmed by the Appellate Court.
McCulloch & McCulloch, for appellant. Moran, Mayer & Meyer, for appellee.
CARTER, J. (after stating the facts). The finding of the Appellate Court is conclusive as to all the facts in the case. Appellant claims that the trial court ruled improperly On the admission and exclusion of testimony. There is some discussion in the briefs as to the burden of proof. We think where the title to property is claimed as a gift, the burden of proof is undoubtedly on the one claiming the gift. In any event, the cause was submitted to the trial court and its finding cannot be disturbed, since that finding has been affirmed by the Appellate Court. The issue in Riggs v. Powell, 142 Ill. 453, 32 N. E. 482, cited by appellant on this question, So differs from the issue in this case that it can have little weight here.
The Serious contention centers about the right of Sexton to testify on certain subjects about which he was questioned by his counsel. Sexton was called as a witness under section 81, c. 3, Hurd's Rev. St. 1905, p. 118, on the administration of estates, which is as follows: “If any executor or administrator, or other person interested irt any estate, shall state upon oath, to any county Court, that he believes that any person has in his possession, or has concealed or embezzled, any goods, chattels, moneys or effects, books of account, papers or any evidences of debt whatever, or titles to lands belonging to any deceased person; or that he believes that any person has any knowledge or information of or concerning any indebtedness or evidences of indebtedness, or property titles or effects, belonging to any deceased person, which knowledge or information is necessary to the recovery of the same, by suit or otherwise, by the executor or administrator, of which the executor or administrator is ignorant, and that such person refuses to give to the executor or administrator such knowledge or information, the court shall require such person to appear before it by citation, and may examine him on oath, and hear the testimony of such executor or administrator, and other evidence offered by either party,
and make such order in the premises as the case may require.” Sexton's testimony on the citation before the probate court was taken down in shorthand, a part of it having been introduced by appellee on this trial in the court below, and the balance having been introduced by appellant. Appellant's counsel contend that, because of the introduction of the evidence taken on citation before the probate court, Sexton was rendered a competent witness to testify as to all matters pertaining to the bonds and note, whether Occurring before Or after the death of Dr. Butler. It is contended that by introducing this evidence Sexton was thereby called as a witness by the executor, who was an adVerse party within the meaning of section 2, c. 51, Hurd's Rev. St. 1905, and that being SO called he was rendered competent to testify in the present suit as to all matters material and relevant. Section 2 is as follows: “No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his OWn motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless When called as a witness by such adverse party so suing or defending, and also except in the following cases, namely.” There are four exceptions given in the statute, none of which are applicable to the present point under discussion.
The incompetency of Witnesses because of interest has invoked much discussion. Many authorities have been cited by learned counsel in their briefs. Appreciating the importance of the question we have given it full and careful consideration. In the Wellconsidered opinion of the Appellate Court by Adams, J., the point at issue is clearly set forth, as follows: “The language of Section 2, c. 51, is: “No party to any civil action * * * shall be allowed to testify therein of his OWn motion or in his own behalf * * * unless When called as a Witness by such adverse party so suing or defending. By the section the prohibition against testifying refers expressly to the pending suit in Which One Sues Or defends in One of the characters named in the Section, by the use of the word “therein,” and the exception to the prohibition, unless when called as a witness, etc., is an exception to the prohibition, and the section is to be read as if the word “therein' [which is evidently understood] followed next after the word “witness,” so that the reading would be, ‘unless when Called as a Witness therein,” etc. The Statute does not mean that if the party has been called by the adverse party so suing or defending in a previous suit or proceeding between the same parties and in respect