once a week for three successive weeks in a [7. Schools and school districts 42(2)-Dissecular newspaper of general circulation published in Chicago, Cook county, Ill., etc.

The decree of foreclosure was not void, and the circuit court properly dissolved the injunction and dismissed the bill of appellants, and the decree will therefore be af

firmed.

Decree affirmed.

(315 III. 228)

PEOPLE ex rel. MARK et al. v. HARTQUIST et al. (No. 16312.)

(Supreme Court of Illinois. Dec. 16, 1924. Rehearing Denied Feb. 6, 1925.)

1. Records 10-Public officer required to keep record must supply omission or correct mistake whenever discovered.

trict and title of school board members held not invalid for failure to comply with Australian Ballot Law, in view of curative statute.

As county superintendent's record of orafter passage of Laws 1921, p. 797, validating ganization of a high school district, as amended organization of districts and election of members of boards of education, speaks as of time proceedings were had, neither district nor title of members elected before enactment of such law can be held invalid for failure to comply with requirements of Australian Ballot Law. 8. Quo warranto 57-Whether inclusion of tracts in school district was proper held immaterial in quo warranto proceedings against members of board of education.

Whether tracts of land, inaccurately described in proceedings for organization of school district, are properly therein, held immaterial in proceedings in nature of quo warranto against members of board of education; question being whether district was legally or

Public officer, required by law to keep record of proceedings, must correct mistake organized and defendants are usurping offices. supply omissions whenever he discovers them from data in his office.

2. Mandamus

82-Lies to compel public officer to correct mistake in, or supply omission from, record.

Mandamus lies to compel performance of public officer's duty to correct mistake in, or supply omission from record.

3. Evidence 383 (3)-Record of proceedings as corrected by public officer conclusive evidence of facts stated.

Record of proceedings, as amended by correction of mistake or omission by public officer legally bound to keep record, is conclusive evidence of facts therein stated.

4. Evidence 333(6)-Record of proceedings in organization of school district held admis

sible in quo warranto proceedings against members of board of education.

Record made by county superintendent of schools, after Supreme Court decision that law required him to do so, showing strict compliance with all legal requirements in organization of school district and election of members of board of education, held admissible in proceedings in nature of quo warranto against members elected.

5. Evidence 387 (1)-Amended record of of ficial action cannot be contradicted by parol. Where public official, charged with duty of making record of official action, fails to do so because of accident, oversight, or other cause, record, as thereafter properly amended, has same force and effect as though originally made, and cannot be contradicted by parol.

6. Records 19-Amended record of official action speaks as of day when proceedings were had.

Amended record of official action of which no record was originally made by reason of accident, oversight, or other cause, speaks as of day when proceedings recorded were in fact had.

Appeal from Circuit Court, Henderson County; George C. Hillyer, Judge.

Information by the People, on the relation of Elmer Mark and others, against William Hartquist and others. Judgment for defendants, and relators appeal. Affirmed.

M. E. Nolan, State's Atty., of Oquawka

(Hartzell & Werts, of Oquawka, of counsel), for appellants.

W. C. Ivins, of Stronghurst, and Grier, Safford & Soule, of Monmouth, for appellees.

HEARD, J. In accordance with the directions of this court in People v. Hartquist, 311 Ill. 127, 142 N. E. 475 (a prior appeal of this case), leave was given by the circuit court of Henderson county to the state's attorney of that county to file an information tion of taxpayers, against William Hartquist in the nature of quo warranto, on the relaand four other individuals, charging them with usurping the offices of members of the board of education of supposed community high school district No. 104 of Henderson county. Thereupon the respondents (appel. lees) filed their pleas in justification, and issue being joined, the cause was by agreement heard before the court without a jury,

the issues found in favor of appellees, judgment in their favor rendered by the court, and an appeal to this court prayed and perfected by appellants.

The information consisted of two counts, the first count of which in general terms alheld and still unlawfully hold, without any leges that the respondents have unlawfully authority, the pretended office of members of the board of education of pretended community high school district No. 104 of Henderson county. The second count is similar to the first, except that it also alleges that the pretended community high school

(146 N.E.)

the record as amended is conclusive evidence of the facts therein stated. Turley v. County of Logan, 17 Ill. 151; Board of Education v. Trustees of Schools, 174 Ill. 510, 51 N. E. 656.

district was not at any time created and this duty. When such amendment is made, organized according to law, and is not now, and never has been, an existing community high school district. The pleas in justification set out in detail the various steps by which appellees claimed the district had been organized, and by which they claimed to have been elected as members of the board of education of the district.

[4] The second record made by the county superintendent of schools showed a strict compliance with all the requirements of law in the organization of the district, and in the elections held, as to the filing of the pe titions and the giving of notices, and the court did not err in admitting it in evidence.

The election upon the question of organizing the district was held on March 20, 1920, when the statute required the election to be held under the Australian Ballot Law. People v. Hartquist, supra. On May 10, 1921, the Legislature passed an act providing:

The specific grounds upon which the information is based are that there is no legal record in the office of the superintendent of schools of Henderson county, or of any other officer, that notice of an election for the purpose of voting for or against the proposition to establish the community high school district was ever posted for at least 10 days in 10 of the most public places throughout the territory prior to the election, as required by the statute, and that at the election which was held, as well as in the subsequent election of directors, the requirements of the ballot law were not observed. In People v. Hartquist, supra, it was held that the conditions precedent essential to the action of the superintendent of schools and the holding of the election must appear of record, and that while there was no ex-tory is hereby declared legally and validly orpress requirement that the superintendent should keep a record of the proceedings, it was necessarily implied, from the nature and effect of the acts required of him, that he should keep a record of the action taken in the course of the proceedings for organizing a school district. It was also held that the petition and the giving of notices, which were essential preliminaries to the election, must be shown by the superintendent's record.

At the time of the filing of the information in this case there was no record in the office of the superintendent of schools of Henderson county of the petition or of the posting of notices, as required by law. Subsequent to the decision of this court in People v. Hartquist, supra, the county superintendent of schools, from the papers and memoranda which he had in his office, prepared a record showing in detail the different steps taken in the organization of the school district, including the filing of the petition and the requisite posting of notices, which record was offered and admitted in evidence. Subsequent to the making of the first record the superintendent made a second record more in detail, which record was also admitted in evidence in the case.

[1-3] Where by law it is made the duty of a public officer to keep a record of proceedings and through oversight or mistake he fails to do so or makes an incorrect record, whenever he discovers, from the data in his office, as such officer, such omission or mistake, it is his duty as such officer to correct the mistake or supply the omission in the record so that the record shall speak the facts correctly, and, if he fails to do so, mandamus will lie to compel the performance of

"That in all cases where a majority of the inhabitants of any contiguous territory, voting on the proposition, have voted at an election called for the purpose by the county superintendent of schools, in favor of the organization of such territory into a community high school district, and where, at a subsequent election has been chosen for such district, such terrisimilarly called and held, a board of education ganized and established as a high school district, and a valid and existing school district and body politic and corporate of this state for the purpose of establishing and maintaining a high school." Laws of 1921, p. 797, § 1.

Section 2 of the act provided that:

"No irregularity, defect or omission whatsoever, in the time or manner of calling, holding or conducting any such elections or in the notice thereof, ballots used therein, or returns thereof, shall be held to invalidate any such

elections."

It is insisted by appellees that this act was sufficient to cure any defects in the organization of the school district. On the other hand, it is insisted by appellants that at the time the act in question was passed there was no record in the county superintendent's office showing that legal notice of such election had been given, and that therefore, the curative act of May 10, 1921, has no application to this case.

[5, 6] Where, by reason of accident, oversight, or other cause, a public official charged with the duty of making a record of official action has failed to make a record of such action and the record is thereafter amended in a proper and legal manner, the record has the same force and effect as though originally made as amended and can no more be contradicted by parol than any other lawful record, and it speaks as of the day when the proceedings which it records were in fact had. County of Du Page v. Highway Com'rs, 142 Ill. 607, 32 N. E. 269; 29 Corpus Juris, 466.

[7] The amended record of the county superintendent, speaking as of the time when

the proceedings were had, is sufficient to | judgment of confirmation. They jointly and bring the district within the requirements severally prayed an appeal to this court, of the act of May 10, 1921, and neither the district nor the title of appellees to hold the office of members of the board of education of the district can be held invalid for a failure to comply with the requirements of the Australian Ballot Law.

which prayer was "allowed as to any objector or objectors filing herein an appeal bond, jointly or severally, in the sum of $500" within 30 days. Thirty-two objectors and 3 property owners, who did not object, filed an appeal bond June 14, 1924, and 25 [8] Some complaint is made as to inaccu- others objectors on the same day filed anracies in the description of two tracts of other appeal bond. Appellee has filed a moland in certain portions of the proceedings. tion to dismiss the appeal on the ground that The question here is not whether such tracts 3 of the 35 who signed one of the bonds did are properly within the district, but wheth-not object to the assessment, and on the furer or not community high school district No. ther ground that the appeal was not taken in 104 of Henderson county has been legally compliance with the statute or the order of organized, and whether or not appellees are the court. The 3 persons who filed no objecusurping the offices of members of the board tions, but joined in one of the appeal bonds, of education of that district. have filed a cross-motion to dismiss the apThe judgment of the circuit court is sus-peal as to them, and that motion is allowed. tained by the evidence in the record, and it There then remains the motion to dismiss the is affirmed.

Judgment affirmed.

(315 Ill. 138)

CITY OF MOMENCE v. KIRBY et al. (No. 16307.) (Supreme Court of Illinois. Dec. 16, 1924. Rehearing Denied Feb. 5, 1925.)

Municipal corporations 508 (2)-Statute authorizes only joint or several appeal from judgment confirming special assessment; "severally."

appeal, for the reason that it is neither a joint nor several appeal and was not taken in compliance with the statute and order of the court.

Section 95 of the Local Improvement Act (Smith-Hurd Rev. St. 1923, c. 24, § 804) provides that appeals may be taken to this court from final judgments, "and the court may allow such an appeal to be taken jointly, and upon a joint bond, or severally, and upon several bonds, as may be specified in the order allowing the same." Only joint or several appeals are permitted and authorized by the statute and the order of the court granting an appeal. The meaning and intent of the statute are that as many objectors as desire to appeal may be permitted to do so by joining in the appeal, or they may prosecute separate appeals. It is not required that all persons who object must join in the appeal, but those who desire to appeal may do so jointly, or, if they for any reason desire to do so, they may be authorized by order of the court to prosecute separate appeals. The word "severally," in section 95, means "separately." Appeals jointly or Appeal from Kankakee County Court; separately are authorized. Here 57 objecHenry F. Ruel, Judge. tors prayed, and were allowed by order of the Proceeding by the City of Momence for court to join in one appeal or to prosecute special assessment opposed by J. J. Kirby separate appeals. They did neither, but 32 and others. From a judgment confirming the of them joined in one appeal and 25 in anassessment, objectors appeal. Appeal dis-other. In other words, none of them prose

Local Improvement Act, § 95, providing that appeals from judgment confirming special assessment may be "taken jointly, and upon joint bond or severally, and upon several bonds," requires that persons desiring to appeal must do so jointly or severally; "severally" meaning "separately," and two joint appeals by different objectors joining in each were unauthorized.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Severally.]

missed.

W. R. Hunter, of Kankakee, V. A. Parish, of Momence, and Eva L. Minor, of Kankakee, for appellants.

E. P. Harney, of Momence, and Miller & Streeter, of Kankakee, for appellee.

FARMER, J. This is an appeal from a judgment of the county court of Kankakee county confirming a special assessment for a local improvement in the city of Momence. Fifty-seven property owners objected to the

cuted several or separate appeals, but they prosecuted two joint appeals. Two joint appeals are not several or separate appeals. We do not know of any case where this court has considered the question of two joint ap

peals from a judgment of confirmation, but

that such appeals can only be prosecuted in conformity with the statute and order granting the appeal has been considered by us.

In Lingle v. City of Chicago, 210 Ill. 600, 71 N. E. 590, Lingle, one of a large number of property owners who objected and excepted to the judgment of confirmation, pros

(146 N.E.)

ecuted a separate appeal. The order of the { In Congregational Church v. Page, 255 Ill. court recited that the "objectors take an ex- 267, 99 N. E. 453, cited in the opinion just ception and pray an appeal," which was al- quoted from, the court held, where a joint lowed, on filing bond and bill of exceptions. appeal is prayed and allowed, all the appelA motion was made in this court to dismiss lants must sign the appeal bond or the apthe appeal. The motion was allowed. The peal will be dismissed. court said:

In Fortune v. Gilbert, 207 Ill. 235, 69 N. E. 857, an appeal was granted to three parties jointly, but was perfected by only one of The appeal was dismissed, the court them. saying the right of appeal is statutory, and can be availed of only when in conformity with the order of allowance. Here the appeal was not perfected in conformity with the statute or the order of court granting the appeal, and the motion to dismiss must be

allowed.

"Judgments confirming special assessments are several judgments against the different parcels of property, but section 95 of the act in force July 1, 1895, entitled 'An act concerning local improvements' (4 Starr & Cur. Stat. c. 24, par. 132, p. 201), provides that the court may enter an order allowing appeals in such proceedings to be taken either jointly by all the owners of the property against which the judgments have been rendered, upon the joint bond of such owners, or allowing several appeals to be taken by the respective owners upon several bonds, 'as may be specified in the order allowing the same,' to use the language of the section. It appears from the order granting an appeal from the judgment confirming the assessment of benefits in this proceeding, which we have herein before quoted, that an appeal was prayed by and on behalf of 'the objectors,' and such prayer was allowed on the filing of a single bond. We have in many instances, in special. assessment proceedings under such orders, entertained jurisdiction of appeals perfected by all of the owners of the property against whose property the assessment had been confirmed. The order does not award a several appeal upon the several bond of any objector."

In Legro v. Ashkum Drainage District, 297 Ill. 155, 130 N, E. 369, a number of landowners jointly appealed from an order of the drainage commissioners confirming a classification of the lands. The statute did not authorize a joint appeal in such case, and this court affirmed the judgment of the county court dismissing the appeal. In the discussion of the question this court said:

"The Local Improvement Act expressly authorizes a joint appeal upon a joint bond, or separate appeals upon separate bonds. The right to appeal is statutory, and parties having separate and distinct conflicting interests cannot unite in a joint appeal upon a joint bond, unless authorized by the statute to do so.

* Appellants entered a motion for leave to file an amended bond, which the court overruled, and they contend that, if the appeal was not proper, the filing of the joint bond showed an intention to appeal, and the court erred in not allowing them to amend. In First Congregational Church v. Page, 255 Ill. 267, it was held that, where a joint appeal is allowed and an appeal bond is signed by only one of the appellants, if cannot be remedied by filing a new bond signed by all the appellants, but the appeal must be dismissed. The converse of that proposition must also be true. Whether the terms of appeal are fixed by order of the court or by statute, the order or statute must be strictly complied with. Here the right of appeal is fixed and governed by the statute, and, unless perfected in the manner required by the statute, must be dismissed."

Appeal dismissed.

(315 Ill. 178)

WILLIAMS v. WILLISTON et al.
(No. 15917.)

(Supreme Court of Illinois. Dec. 16, 1924.
Rehearing Denied Feb. 5, 1925.)
Mortgages 20-Right of redemption not
barred except in mode recognized by law.

Right of redemption given to mortgagor and judgment creditors, under Smith-Hurd Rev. St. 1923, c. 77, §§ 18, 20, cannot be disregarded, and parties cannot by express stipulation in mortgage destroy or cut off such right, since instrument, if mortgage when delivered, continues as such, with its incidents, until right of redemption is legally barred.

2. Mortgages 527-Master's certificate does not give purchaser title, but merely right to receive redemption money or deed on expira. tion of redemption period.

Under Smith-Hurd Rev. St. 1923, c. 77, § 16, master's certificate of sale on foreclosure does not give purchaser title, but merely right to receive redemption money, if redemption is made within redemption period, or, if there is no redemption, to receive master's deed.

3. Mortgages 586-Owner of equity of redemption has same estate before and after foreclosure sale.

Owner of equity of redemption has same estate before and after foreclosure sale.

4. Mortgages 296-Agreement between purchaser at foreclosure and owner of equity of redemption, and failure to redeem within period agreed, held not to merge mortgage lien with fee title, nor extinguish foreclosure proceedings.

Where vendor foreclosed junior mortgage securing price and bought in property, his subsequent written agreement with owner of equity of redemption, whereby, because of failure of owner of equity of redemption to exercise option, vendor obtained quitclaim deed before period of redemption expired, held not to merge junior mortgage lien, and master's certificate to vendor with fee title, so as to extinguish foreclosure proceedings, where vendor accepted redemption money.

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

Appeal from Circuit Court, Cook County; ceedings to foreclose the junior trust deed Francis S. Wilson, Judge.