by one of them which has been accumulated | cial oath, will not be set aside merely on unby the joint efforts of the two or by the corroborated testimony of person on whom profunds of both, then such property should be cess has been served, but only on clear and divided according to such equity as exists satisfactory evidence. between them. While in the present case 3. Process Em 149—Defendant's uncorroborat. each of the parties claims that the property od testimony, together with officer's failure in question was purchased by their individu to remember ervice, held insufficient to im. al funds, yet the evidence shows that both peach return. parties after their marriage worked and Defendant's uncorroborated testimony that contributed 'materially to the funds with summons was not served on him, and failure of which the property was purchased. No

officer making return to remember service, held books of account were kept, but the earn- ice was not made as to impeach return.

not such clear and satisfactory proof that servings of each went into a common fund, which was used for the support of the family and 4. Appeal and error Om 1052(8) - Judgment in making payments for the real estate. The Omw 461 (2) - Letters held incompetent evi. chancellor saw and heard the witnesses, and

dence, but harmless, where decree sustain

able without them. we are not disposed to set aside his decree giving to each of the parties a one-half in

In bill praying for vacation of judgment and terest in the premises.

granting of new trial on ground that summons [6] The evidence shows that on January 1, ten by attorneys of defendant to complainant,

was never served on complainant, letters writ1923, appellee deserted his home, and that notifying complainant of defendant's intention thereafter appellant collected the rent from to bring suit, were not competent evidence, as the premises, which were a flat building, in they had no tendency to prove service of sumwhich appellant and her children continued mons; but their admission was harmless, where to reside. The rents were largely devoted to decree denying complainant relief was sustained the making of repairs, the payment of taxes, by evidence without them. payments upon a mortgage indebtedness, and 5. Appeal and error C 1052(8) - Judgment the support and maintenance of appellant Om 461 (2) - Evidence as to whether comand the three minor children. No books of plainant, seeking to have judgment set aside, account were kept by either party, and ap had a defense, competent, but immaterial, pellant has no means of making an itemized where complainant not entitled to relief be. account of her receipts and expenditures.

cause served with summons. Under the particular circumstances of this

In bill praying for vacation of judgment and case, we are of the opinion that it would be new trial on ground that summons was never inequitable to require her to account to ap

served, interview of defendant's father with pellee for one-half of the rents prior to the complainant as to latter's admissions was com

petent on question of complainant's defense, date of the rendition of the decree, especial- but could not affect decree denying him relief, ly as appellee did not pray for such account- on ground that summons had been properly ing in his cross-bill, but that she should ac-served. count to him for one-half of the rents from the time of the entry of the decree.

Error' to First Branch Appellate Court, The decree of the circuit court is affirmed First District, on Appeal from Superior in part, and reversed in part, and remanded Court, Cook County; Denis E. Sullivan, to the circuit court of Cook county, with di- Judge. rections to modify the decree with reference Bill by Anton Marnik against Bernice Cuto the accounting for rents in accordance sack for vacation of judgment, new trial, and with the views herein expressed.

for injunction against collection of judgment. Reversed in part and remanded.

From a judgment of the Appellate Court, affirming a decree dismissing complainant's

bill, complainant brings certiorari. Judg(317 III. 362)

ment atfirmed. MARNIK V. CUSACK. (No. 16413.) George B. Cohen and A. H. Cohen, both of

Chicago, for plaintiff in error. (Supreme Court of Illinois. April 24, 1925.

Callahan & Callahan and Charles P. R. Rehearing Denied June 9, 1925.)

Macaulay, all of Chicago, for defendant in 1. Judgment Om419-Relief granted to person error. injured by false return. Where sheriff or other officer has made a

DUNN, J. On October 16, 1920, Bernice false return, relief may be granted to person Cusack, an infant of the age of four years, injured thereby by a court of equity or law, by her father as her next friend, brought an according to the circumstances.

action on the case for $10,000 damages to the 2. Process ww 157—Return set aside only on November term of the superior court of Cook clear and satisfactory evidence.

county against Anton Marnik. A declaraThe return of an officer, made in due course tion was filed, counting on the negligent opof official duty and under sanction of his offi- , eration of an automobile on August 21, 1920,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.) by which the plaintiff was injured. The , until after the term at which the Judgment summons was returned served on October was rendered. The return of the summons 20. No plea was filed, but no default was was made by Larsen, a deputy sheriff, whose taken until March 15, 1922, when the defend-duty it was to serve writs in the district in ant was defaulted, the damages were assess- / which Marnik lived. When first called on ed by a jury at $2,500, and judgment was September 11, 1922, nearly two years after rendered for that amount. No execution was the date of the service, he first testified that, issued, but the plaintiff's attorneys, by mail, while he made the return, he did not reon April 11 and on April 20, demanded pay- member serving the writ. On cross-examiment of the judgment. Thereupon the de- nation he said that he did not serve it himfendant filed a bill in equity in the superior self, but that he remembered giving it to court, alleging that he had not been served Kruckstein, another deputy. He further teswith summons; that he did not own or oper- tified that he was pretty sure he gave it to ate the automobile alleged to have caused Kruckstein, and that officers many times the injury complained of, and its driver was give writs to one another to serve, and the not his employee or agent; that he had no man in whose territory it is signs the return. knowledge of the judgment until after the Kruckstein testified that he never served expiration of the term at which it was ren- anybody on Monticello avenue, the street on dered, and therefore could not move to set which Marnik lived. He remembered that aside the judgment, pray an appeal, or pro- Larsen gave him the summons which he servcure a bill of exceptions during the term, so ed, but he did not know whether it was the that he had no remedy at law. The bill summons in controversy or not. Whenever prayed for the vacation of the judgment, he served a summons, or failed to serve one, the granting of a new trial in the action, and he made a memorandum of it, and gave it to for an injunction, in the meantime, against Doc Smith, who was the clerk of returns in the collection of the judgment. An answer the sheriff's office. He further testified that was filed, denying the allegations that the he did not sign this return. His handwritcomplainant was not served with summons, ing was not on it. Larsen was on the witor that he had a meritorious defense to the ness stand two or three times after this, and action; the cause was referred to a master, stated that he did not remember whether he who reported, recommending the dismissal served the writ or not; that he believed he of the bill for want of equity; and the court, served it; that the memorandum, “Personal, after overruling exceptions to the report, en- October 20,” on the summons was in his tered a decree in accordance with the recom- | handwriting; that he had no independent mendation. The Appellate Court atfirmed recollection of the writ; that his records the decree on the complainant's appeal, and showed that he served a summons on Anton he has sued out a writ of certiorari for the J. Marnik; that he was not testifying from review of the record.

his memory, but from his records, and had [1, 2] Where a sheriff or other officer has absolutely no recollection now upon whom made a false return, whether wrongfully and he served the writ or where. intentionally, or innocently by mistake, re. The testimony of Larsen and Kruckstein lief may be granted by a court of equity or amouuts to nothing, either to assist or imlaw, according to the circumstances, to the peach the service. Neither has any recollecperson injured by the false return, against tion, but both rely upon their written memthe consequences, and this has frequently oranda. We must do the same, and the wellbeen done. Owens v. Ranstead, 22 Ill. 161; established rule is that the return showing Brown v. Brown, 59 Ill. 315; Hickey V. service cannot be overcome by the uncorroboStone, 60 Ill. 458; Sibert v. Thorp, 77 Ill. 43; rated testimony of the defendant. The failJones V. Neely, 82 Ill. 71; Kochman v. ure of the officer making the return to reO'Neill, 202 Ill. 110, 66 N. E. 1047; Hilt v. member the service is not such clear and Heimberger, 235 Ill. 235, 85 N. E. 304. The satisfactory proof that service was not made stability of judicial proceedings, however, as to impeach the return. requires that the return of an officer, made [4] It is unnecessary to discuss the existin the due course of his official duty and un-ence of a defense. After the plaintiff in erder the sanction of his official oath, should ror was served, it was his duty to present not be set aside merely upon the uncorrobo- his defense in the action at law, and he canrated testimony of the person on whom the not be relieved against his own neglect to do process has been served, but only upon clear so. The letters written by the attorneys of and satisfactory evidence. Davis V. Dres- the defendant in error to Marnik, notifying back, 81 Ill. 393; Kochman v. O'Neill, supra. him of her cause of action and of their in

[3] The only question necessary for our de- tention to bring suit, were not competent termination is whether the return has been evidence, as they had no tendency to prove impeached by such clear and satisfactory service of the summons. They were not enevidence as to show that the summons was titled to any consideration in determining not served on the plaintiff in error. Marnik that question; but their reception did no testified that the summons was not served harm, for the decree is sustained by the evi. upon him, and he knew nothing of the suitdence without them.

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[5] The interview of the defendant in er-17, Eminent domain C 241-Allowance of three ror's father with Marnik was competent up years to pay compensation and damages for on the question of Marnik's defense, because condemnation by drainage district not unreathe father testified to admissions by Marnik

sonable. of ownership of the automobile; but it could Allowance of three years from judgment to not affect the decree, for whether Marnik pay compensation and damages for condemnahad a defense or not, having been served tion by drainage district for diversion canals with summons, he was not entitled to relief. outside of district held not unreasonable time,

The judgment of the Appellate Court will under all the circumstances of the case. be a ffirmed.

Appeal from Hancock County Court; Judgment affirmed.

Warren H. Orr, Judge.

Action by the Hunt Drainage District against Richard Harness and others. Judg

ment for plaintiff, and defendants appeal. (317 III. 292)


Mack & Mack, Williams & Williams, Hart(No. 16358.)

zell, Cavanagh, Martin & Hartzell, and Sco(Supreme Court of Illinois. April 24, 1925. field & Bell, all of Carthage, for appellants. Rehearing Denied June 10, 1925.)

Plantz & Lamet, of Warsaw, O'Harra,

O'Harra & O'Harra, of Carthage, and Ly. 1. Eminent domain m9_Drainage district is man Lacey, Jr., of Havana, for appellee.

public corporation, with right to exercise eminent domain.

FARMER, J. Hunt drainage district, in Drainage district is a public corporation, Hancock county, was organized under the with right to exercise power of eminent do- Levee Act (Smith-Hurd Rev. St. 1923, c. 42, main for proper purposes.

§ 1 et seq.) in 1879. It embraces 16,000 acres 2. Eminent domain 31-Drainage district of land lying between the Mississippi river

held to have power to appropriate land out on the west and the bluffs on the east. Lev. side of district to complete protection of dis. ees protect the district from overflow from trict.

the Mississippi river. Schuhart and Rocky Drainage district held to have power to Run creeks empty into the district at or near condemn land outside of district for diversion the foot of the bluffs. In April, 1923, the purposes to complete protection of district, commissioners of the district filed in the under rule that public corporation may exercise such powers as are necessarily implied in county court of Hancock county a petition or incident to express powers, and under au

to condemn rights of way for the constructhority of Levee Act, 37.

tion of diversion canals or ditches to carry

the waters discharged into the district by 3. Eminent domain ww68-Power to condemn Schuhart and Rocky Run creeks across lands not interfered with, except for clear abuse.

lying outside the district. The owners of Exercise of power to condemn lands by the lands sought to be condemned filed modrainage district will not be interfered with, tions to dismiss the petition on the ground except for clear abuse of it.

petitioners had no authority under the Con4. Eminent domain m58--Exercise of power stitution or statute to appropriate lands ly.

of eminent domain by drainage district not ing outside the district for the purposes menclearly abused.

tioned in the petition, and also because it Condemnation by drainage district of prop was not shown by the petition that there erty outside of district for diversion canals to had been any lawful effort to agree with the protect and drain lands within district held not landowners, or either of them, as to comclearly abuse of power of eminent domain, un

pensation for lands taken and damaged for der circumstances.

the uses sought by petitioners. Answers 5. Eminent domain 68-Courts cannot in- were also filed, setting up substantially the terfere with condemnation as being unneces

same defense, and also denial that the di. sary, where right exists.

version ditches were necessary for the recWhere right to condemn lands exists, courts lamation of the lands in the district. Before cannot interfere with it on grounds that exer a jury was impaneled the court heard evi. cise of power is unnecessary or inexpedient. dence on the preliminary question of the

right to condemn the lands, and entered an 6. Drains em 41-Slight changes in routes of order that petitioners had that right, and diversion channels not prejudicial. Slight changes in routes of diversion chan; file cross-petitions. A jury was then impán

the landowners were given time to, and did, nels as shown in plans and order of court, and as shown by petition, there being no substantial eled, and after hearing the evidence rechange in location of ditch, held not prejudicial, turned a verdict awarding compensation to being merely such changes as commissioners the respective landowners for lands taken had a right to make.

and damages to lands not taken. Motion for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(148 N.E.)
a new trial was overruled, and judgment ! a part of which was to be expended on work
rendered on the verdict, from which judg- outside the district. The court held the stat-
ment this appeal is prosecuted by the land- ute authorized the expenditure on work out-

side the district, under the order and direc-
No error is assigned as to the adequacy of tion of the court. The same question was
the compensation awarded. Some questions considered in Briggs & Frith v. Union Drain-
as to the regularity of the procedure are age District, 140 Ill. 53, 29 N. E. 721, and the
raised, but the principal contention of appel- court held the drainage commissioners had
lants is that appellee had no power to con- the power to use mouey raised by assess-
demn appellants' lands which were outside ment against the lands in the district, under
the district, and that there was no necessity the direction of the court, on the construc-
for taking the lands for the purposes that tion of work outside the district, necessary
they were sought to be taken. The question for the protection and complete drainage of
here presented—the right of the district to the lands of the district. That decision was
condemn land for diversion purposes—has approved in Binder v. Langhorst, 234 Ill. 583,
never been decided by this court.

85 N. E. 400. In that case the court said:
[1-4] A drainage district is organized for

"The power of the commissioners, under the
a public purpose, and is a quasi municipal direction of the court, to construct any work
corporation, and possesses authority to exer- necessary for the protection and ample drain-
cise the powers 'necessary to carry out the age of the lands within the district, whether
purposes for which it is organized. The Con- the work is to be done within or without the
stitution and statutes authorize a drainage district, and to raise money by assessment for
district to raise funds to accomplish the ob- that purpose, is plainly given by the statute.”
jects for which it is organized, by special The court also held the obligation and the
assessment, which is the power to tax, and power of the commissioners are the same un-
a requisite of the power to tax is that the der the Levee Act as under the Farm Drain-
tar shall be for public purposes. A drainage age Act. Bay Bottoms Drainage District v.
district is therefore held to be a public cor- Cache River Drainage District, 295 Ill. 301,
poration, and has the right to exercise the 129 N, E. 152, sustains the power of the com-
power of eminent domain for proper purpos- missioners to condemn lands outside the dis-
es. Havana Township Drainage District v.trict for the complete drainage and reclama-
Kelsey, 120 Ill. 482, 11 N. E. 256; Elmore v. tion of the lands in the district.
Drainage Comrs., 135 Ill. 269, 25 N. E. 1010, Appellants contend those cases go no fur-
25 Am. St. Rep. 363; Cleveland, Cincinnati, ther than to hold the commissioners may ap-
Chicago & St. Louis Railway Co. v. Polecat propriate lands outside the district for out-
Drainage District, 213 Ill. 83, 72 N. E. 684; let or similar purposes but do not authorize
City of Joliet v. Spring Creek Drainage Dis- the construction of diversion canals upon the
trict, 222 Ill. 441, 78 N. E. 836; Hutchins v. lands of others outside the district. It is
Vandalia Drainage District, 217 Ill. 561, 75 conceded the statute authorizes the commis-
N. E. 354; Smith v. Claussen Drainage Dis- sioners to appropriate lands outside the dis-
trict, 229 Ill. 155, 82 N. E. 278. It is welltrict for an outlet in the complete drainage
settled, as stated by Dillon in his work on of the district. The language of the statute
Municipal Corporations, that in addition to does not restrict the power to appropriate
the powers expressly granted them, such cor- lands outside the district to the providing
porations may exercise such powers as are of an outlet for draining the lands in the
necessarily implied in or incident to the pow. district. . The commissioners are authorized
ers expressly granted. City of Chicago v. to spend money raised by assessments
M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753. against the lands in the district in the con-
"A drainage district necessarily possesses struction of work outside the district neces-
the implied powers necessary to carry out sary to the protection and complete drainage
the express powers granted." Spring Creek of the lands within the district. The char-
Drainage District v. Elgin, Joliet & Eastern acter of the work authorized is limited only
Railway Co., 249 Ill. 260, 94 N. E. 529. Such to such work as may be necessary to com-
corporations are expressly authorized by sec-pletely protect and reclaim the lands in the
tion 37 of the Levee Act to expend the mon- district. Diversion canals outside the dis-
ey raised by the corporation "for the pur-trict, if necessary to the complete protection
pose of constructing or repairing or main- of the district, are as much authorized as
taining any ditch, ditches, drains, levee or the construction of outlet ditches outside of
levees within said district or outside of said the district.
district, necessary to the protection of the In the case of cities and villages, although
lands and complete drainage of the same no express authority is given them to ap-
within said districts,” under the approval of propriate lands outside the corporate limits

for local improvements, we have held that
Hosmer v. Hunt Drainage District, 134 111. under their necessarily or fairly implied
360, 26 N. E. 584, involved a second assess-powers they may, when necessary to secure
ment made in an already organized district, an outlet, extend sewers beyond the city lim-

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its, and that, of course, carries with it the , sion of Rocky Run and Schuhart creeks, so
power to acquire the land necessary. Shreve as to carry around the district the waters
v. Town of Cicero, 129 Ill. 226, 21 N. E. 815; brought down by them from the hills instead
Cochran v. Village of Park Ridge, 138 Ill. of emptying them in the district. The com-
295, 27 N. E. 939; Maywood Co. v. Village missioners and engineer determined that was
of Maywood, 140 Ill. 216, 29 N. E. 704; Cal. necessary to a complete reclamation of the
lon v. City of Jacksonville, 147 Ill. 113, 35 lands in the district, and the county court
N. E. 223; City of Rockford v. Mower, 259 approved the plans. This court cannot say
Ill. 604, 102 N. E. 1032. In Carr v. City of the diversion channels were not necessary
Athens, 304 Ill. 212, 136 N. E. 633, the court for that purpose.
held that when it is necessary for a munici [5] The question of the power of courts to
pality to go beyond its corporate limits to deny the right to condemn land on the
obtain a water supply for fire protection and ground that the exercise of the right is un-
for the use of its inhabitants, or procure an necessary was discussed in Pittsburgh, Ft.
outlet for a sewer to protect the public | Wayne & Chicago Railway Co. v. Sanitary
health, or the establishment of a pest house, District, 218 Ill. 286, 75 N. E. 892, 2 L. R.
it has the power to do so. In that case the A. (N. S.) 226. The court said on page 290
court sustained the power of the city of Ath. (75 N. E. 894):
ens to construct and pay for a transmission

“The question whether it was necessary that
line beyond the city limits to convey electric the petitioner acquire title to the strip of land
current purchased by the city from a corpo- sought to be taken in order that the object of
ration manufacturing electricity. We deem its organization might be effected was a leg-
it unnecessary to refer to cases in other islative and not a judicial question, and was
states deciding the same way.

one to be determined by the trustees of the

sanitary district, and not by the court in which
Counsel for appellants argue that a city or
village has authority to exercise governmen- court in which such a petition is pending may

the condemnation proceeding was pending. The
tal powers and a drainage district has no rightfully determine whether the petitioner bas
such authority. Both kinds of corporations the power to exercise the right of eminent
have the express and necessarily implied or domain; whether the property is subject to
incidental powers to carry out the purposes the right of eminent domain and is being taken
for which they are organized. The protec- for a public use; whether the power is being
tion and drainage of the lands within a

abused by the taking of an excessive amount of drainage district are the objects and purpos do not involve a determination of the neces

property, and other kindred questions which es of the organization of drainage districts. sity or the expediency of the taking of the lands It would be idle to authorize their organiza- sought to be condemned; but where the right tion unless they were permitted to exercise to condemn exists, and the property is subject powers necessary to effect the purposes for to the exercise of the right of eminent domain which they were organized. We are of opin- and is being condemned for a public use, and ion drainage districts, like cities and vil- | the right to condemn is not being abused, the lages, have, in addition to the express pow. ground that the exercise of the power is une

court cannot deny the right to condemn on the ers granted, implied power necessary to the

necessary or inexpedient, as the determination complete protection and drainage of the of that question devolves upon the legislative land.

branch of the government, and is a question
But we are not required to rest this deci- which the judicial branch of the government
sion upon the implied power of appellee to cannot determine. Smith v. Chicago & West-
appropriate lands of others outside the dis ern Indiana Railroad Co., 105 IU, 511; Chicago
trict, for the statute expressly confers upon in. 449: Illinois Central Railroad Co. v. City

& Eastern Illinois Railroad Co. v. Wiltse, 116
the commissioners the authority to do that of Chicago, 141 III. 586; Chicago & Alton
when necessary to the protection and com- Railroad Co. v. City of Pontiac, 169 Ill. 155."
plete drainage of the lands. Appellee had
the lawful power to take and damage the In addition to the cases cited in support
lands of appellants, if that was necessary to of that text, see, also, City of Winchester v.
completely protect and drain the lands with- Ring, 312 Ill. 544, 144 N. E. 333, Pittsburg,
in the district.

Cincinnati, Chicago & St. Louis Railway Co.
It follows, from the cases referred to and v. Gage, 280 Ill. 639, 117 N. E. 726, and Coun-
what we have said in this opinion, appellee ty of Mercer v. Wolff, 237 Ill. 74, 86 N. E.
had the right to condemn appellants' lands, | 708.
if required for the complete protection of the Appellee made a prima facie case of neces-
lands in the district, and, that being so, sity for condemning appellants' lands, and
courts will not interfere with the exercise of no evidence was offered by appellants to the
the power to condemn the lands, except to contrary. Pittsburg, Cincinnati, Chicago &
prevent a clear abuse of it. The plan of the St. Louis Railway Co. v. Gage, supra.
commissioners, which was approved by the We have not overlooked Ligare v. City of
court, provides for interior ditches and the Chicago, 139 Ill. 46, 28 N. E. 934, 32 Am. St.
construction of a pumping plant to get rid Rep. 179, Chicago & Eastern Illinois Rail-
of surface and seepage water, and the diver- road Co. v. Wiltse, supra, and other cases

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