« ForrigeFortsett »
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  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  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
 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.
 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)
Affirmed. HUNT DRAINAGE DIST. v, HARNESS et al.
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
side the district, under the order and direc-
85 N. E. 400. In that case the court said:
"The power of the commissioners, under the
for local improvements, we have held that
its, and that, of course, carries with it the , sion of Rocky Run and Schuhart creeks, so
“The question whether it was necessary that
one to be determined by the trustees of the
sanitary district, and not by the court in which
the condemnation proceeding was pending. The
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
& Eastern Illinois Railroad Co. v. Wiltse, 116
Cincinnati, Chicago & St. Louis Railway Co.