Sidebilder
PDF
ePub

the chancellor is manifestly against the weight of the evidence. That being the state of the record, the decree must be affirmed.

R. W. Olmsted, of Rock Island, Carl V. Nyman, of Rockford, and Frank L. Flood, of Morris, for appellants.

Frank H. Hayes, of Morris, for appellee.

PER CURIAM. Appellee, Margaret Williams, filed her bill in the circuit court of Grundy county, alleging that she was mar ried in 1906, and with her husband estab lished a home in the city of Chicago; that

[3] Plaintiffs in error have filed in return to the writ of error the transcript of the record of the original decree and of the record of the order denying the rehearing, and have incorporated what purports to be a certificate of evidence in each record, and counsel for both parties have argued the case as a consolidated cause, and we have so consid-prior to that time she had lived with her faered it. There are several questions of procedure apparent on the face of the record which, if decided, would defeat plaintiffs in error, but, inasmuch as these questions are not raised and argued, we do not discuss them. The only questions considered are those specifically discussed and decided.

[blocks in formation]

Certificate of evidence, though signed and sealed by chancellor, held not part of record, unless filed with clerk of court within time allowed by order for appeal.

2. Appeal and error 520 (3)—Affidavit supporting motion for change of venue, not preserved by certificate of evidence, held not part of record for review.

Affidavit supporting motion for change of venue, although copied into record, held not part of it for purpose of review, unless preserved by certificate of evidence.

3. Wills 58(2)-Findings held to justify

ther, Isaac Hoge, on a farm in Grundy county; that her father urged her and her husband to leave Chicago, and return to Grundy county, and take charge of one of his farms; that he told her, if she would lease the Foley place, consisting of 300 acres, and improve it and make it her home, he would give it to her at his death; that she ac cepted his offer, and moved to the Foley place, and made valuable improvements thereon, to the extent of more than $7,000; that her father died in August, 1922, seized of 1,150 acres of land in Grundy county, Ill., 3,040 acres of land in Pawnee county, Kan., and 926 acres of land in Brazoria county, Tex.; that her father valued his Kansas lands at one-third the value of the Illinois lands; that he left surviving him his widow and seven children; that he divided his Illinois and Kansas lands among his seven children; that he intended to make an equal division of said lands; that he gave to the brother and each of the five sisters of ap

pellee lands approximately equal in value to 300 acres of the Illinois land owned by him; that he intended by his will to give her the Foley place; that in writing the will the scrivener erred in describing the lands devised to her, and included in the devise to her the northeast quarter of section 21, the southeast quarter of the same section, which her father did not own, and omitted which he did own, and which was a part of the Foley place; that her father disposed of all of his lands under his will, excepting said southeast quarter of section 21, which is the larger and most valuable part of the Foley place; that the omission of this quarter section of land leaves the lands conveyed to her lying in two separate tracts, one a 60-acre timber tract, lying east of the quarter section, and the other an 80-acre tract, lying south of the quarter section; that her three full sisters and her half-brother, Isaac Hoge, Jr., have recognized her claim to this quarter section of land and have quitclaimed Where certificate of evidence is not prop-to her their interest in the same; that aperly incorporated in record, evidence is pre- pellants, her half-sisters, Mina L. De Roo sumed to sustain findings, and Mildred Nyman, and her stepmother, Laura Hoge, have refused to acknowledge

order that oral contract of father with daughter for grant of land be performed. Findings that father offered daughter farm if she and husband would live on it, that daughter accepted offer and made valuable improvements, that under father's will part of farm was omitted from description and not devised, by mistake of scrivener, and that each of children received fair share of father's estate, held to sustain order that heirs comply with father's contract and deed part of farm, omitted from will, to daughter.

4. Appeal and error 907(3)-Evidence presumed to support findings, where certificate was not incorporated in record.

Appeal from Circuit Court, Grundy Coun- her claim to the land. She prays that the ty; Samuel C. Stough, Judge.

Suit by Margaret Williams against Mina L. De Roo and others. Judgment for plaintiff, and defendants appeal. Affirmed.

oral agreement made and entered into with her father be enforced, and that a deed be delivered to her conveying title to the southeast quarter of section 21, township 34 north,

(146 N.E.)

Du Quoin Waterworks

Co. v. Parks, 207 Ill. 46, 69 N. E. 587; Lange v. Heyer, 195 Ill. 420, 63 N. E. 173. The question is not presented for review.

range 6 east of the third principal meridian, our consideration.
in Grundy county. Appellants answered the
bill, and there was a hearing before the
chancellor. At the conclusion of the hearing
a decree was entered in accordance with
the prayer of the bill, and this appeal fol-
lowed.

[1] The appeal was granted to this court on condition that a bond be filed within 30 days from the date of the decree and that a certificate of evidence be presented within 70 days from said date. The decree was entered July 6, 1923, and the bond was filed August 4 following. A certificate of evidence was presented and signed by the chancellor September 11, but it does not appear from the record that it was ever filed with the clerk of the court.

The question of what is the record may be tried by the record at any time. Field & Co. v. Nyman, 285 Ill. 306, 120 N. E. 756; Haines v. Danderine Co., 248 Ill. 259, 93 N. E. 743. A certificate of evidence, like a bill of exceptions, is designed to preserve and make a part of the record proceedings not otherwise of record, and that which is proper matter for a certificate of evidence, which is not contained in it, is to be taken as not having occurred. Yott v. Yott, 257 Ill, 419, 100 N. E. 902. A certificate of evidence does not become a part of the record until it is placed on file. Hall v. Royal Neighbors, 231 Ill. 185, 83 N. E. 145; Conductors' Benefit Ass'n v. Leonard, 166 Ill. 154, 46 N. E. 756. Though a certificate of evidence has been signed and sealed by the chancellor within the time fixed by the order of the court for filing a certificate, it does not become a part of the record unless it is filed with the clerk of the court in which the cause was heard, within the time fixed by the order. Hall v. Royal Neighbors, supra; Illinois Improvement Co. v. Heinsen, 271 III. 23, 111 N. E. 117; Holmes v. Parker, 1 Scam. 567. [2] The first error assigned and argued is that the chancellor erred in denying the application for a change of venue. While the motion for a change of venue becomes a part of the record in a chancery case when it is filed, the affidavit supporting the motion, which the statute requires shall be attached to it, does not become a part of the record, unless preserved by a certificate of evidence. Bellinger v. Barnes, 223 Ill. 121, 79 N. E. 11; Van Pelt v. Dunford, 58 Ill. 145. The fact that the affidavit in support of the motion has been copied into the record by the clerk does not bring it before us for

[3] The chancellor in his decree found from the evidence that Isaac Hoge, the father of appellee, about the 1st day of August, 1912, offered to give her the Foley place, which consisted of 300 acres of land in Grundy county, including the southeast quarter of section 21 here involved, if she and her husband would leave Chicago, and move to the Foley place, and improve it, and make it their home; that she accepted the offer, and moved to the farm March 1, 1913, and continued to live on it until the death of her father, and until the time of the decree; that from time to time she made valuable improvements on said land and fully performed her part of the contract; that Hoge devised all of the lands owned by him, except the quarter section here involved, and because of a mistake by the scrivener in writing his will he conveyed to appellee the northeast quarter of section 21, which he did not own, instead of the southeast quarter of said section, which he did own, and which was the most fertile portion of the Foley farm; that four of the children of Hoge have quitclaimed their interest in said southeast quarter of section 21, pursuant to the agreement made by their father, in his lifetime, with appellee; that the other two heirs have refused to convey their interest to ap pellee in compliance with the contract of their father; and that complainant is entitled to a deed conveying the two-sevenths of said quarter section claimed by appellants, Mina L. De Roo and Mildred Nyman. The decree orders that the oral contract be performed and that proper deeds be executed and delivered.

[4] Inasmuch as the record filed in this court does not contain the evidence heard by the chancellor, it will be assumed that the evidence was sufficient to sustain the findings of fact recited in the decree. Notwithstanding the failure to have the certificate of evidence properly incorporated in the record, we have read what purports to be the certificate of evidence attached to the record filed, and find that the evidence contained therein fully sustains the finding of the chancellor.

Since we find no reversible error in the record, the decree of the circuit court is affirmed.

Decree affirmed.

(315 Ill. 437)

MURRAY v. HAGMANN et al. (No. 16200.) (Supreme Court of Illinois. Feb. 17, 1925.) 1. Courts 219(3)—Jurisdiction of appeals and writs of error in classes of cases which go direct to the Supreme Court cannot be exercised by Appellate Courts.

Jurisdiction of appeals and writs of error in classes of cases which go directly to the Supreme Court, though not withheld from Appellate Court by Const. art. 6, § 11, providing for creation of such courts, cannot be exercised by Appellate Courts, because not conferred on them by Appellate Court Act, § 8, as amended by Laws 1887, p. 156, specifying jurisdiction of such Appellate Courts.

2. Appeal and error 66-Final judgment essential to jurisdiction of Supreme Court on appeal.

Under Practice Act, § 118, the Supreme Court has no jurisdiction on appeal, unless there has been a final judgment settling the rights of the parties in respect to the subject matter, and concluding them until it is reversed or set aside.

3. Courts 219(1) —Jurisdiction of appeal from order denying motion to dissolve temporary injunction is in Appellate Court, and not Supreme Court.

Under Practice Act, § 118. providing for appeals to Supreme Court from final judgments, the Supreme Court has no jurisdiction on appeal from order denying motion to dissolve a temporary injunction; jurisdiction thereof being in Appellate Court under section 123; such order not being a final judgment. Appeal from Circuit Court, Lake County; Claire C. Edwards, Judge.

Bill by Fred L. Murray against Henry C. Hagmann and others. From order denying motion to dissolve temporary injunction, defendants Ira E. Pearsall and Lew A. Hendee appeal. Transferred to Appellate Court.

personal property tax; that Lew A. Hendee, the county clerk, had issued a certificate of the sale to Churchill, and that, as against the lien of the trust deed, the county court's judgment and the tax sale to Churchill, as far as they include the personal property taxes, are void. Pearsall, the county collector, Hendee, the county clerk, and Churchill were made additional parties defendant to the bill, and an order enjoining a sale upon the judgment and the issuance of a tax deed upon the certificate of sale to the extent of the delinquent personal property taxes was sought. A temporary injunction in accordance with the prayer of the bill was issued. Pearsall and Hendee moved to dissolve the injunction; but the motion was denied, and they appealed directly to this court.

The order from which this appeal is taken is interlocutory. To sustain their appeal appellants contend (1) that the instant case relates to the revenue; and (2) that section 11 of article 6 of the Constitution, and sections 118 and 123 of the Practice act (Smith-Hurd Rev. St. 1923, c. 110), are in pari materia, and construed together authorize an appeal directly to this court from an order denying a motion to dissolve a temporary injunction in such a case.

[1] It is unnecessary to consider or deterThe sec mine appellants' first contention. tion of the Constitution invoked provides that:

"Appellate Courts, of uniform organization and jurisdiction, may be created in districts formed for that purpose, to which such appeals and writs of error as the General Assembly may provide may be prosecuted from circuit and other courts, and from which appeals and writs of error shall lie to the Supreme Court. in all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law."

Under this constitutional provision the General Assembly has the power to prescribe

Ashbel V. Smith, State's Atty., of Waukegan (Sidney H. Block, of Waukegan, of counsel), for appellants. Eugene M. Runyard, of Waukegan, for ap- the appeals which may be taken to and the pellee.

DE YOUNG, J. Fred L. Murray filed his bill to foreclose a certain trust deed against Henry C. Hagmann and others, in the circuit court of Lake county. Later, pursuant to leave granted, he filed amendments to his bill which charged that Ira E. Pearsall, the county collector, had attached to the real estate described in the bill $849.39, with interest, costs, and penalties, for a delinquent personal property tax; that he had obtained a judgment in the county court therefor, and had advertised for sale and was about to sell the real estate to pay the tax; that in the year 1922 the same real estate was sold to Fred W. Churchill for nonpayment of taxes, which sale included $770.96 for an unpaid

writs of error which may be prosecuted from the Appellate Courts. The act which estab lished the Appellate Courts became effective on July 1, 1877. Laws 1877, p. 69. The eighth section of that act as amended (Laws 1887. p. 156) provides that those courts"shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the circuit courts, in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors. and cases involving a franchise or freehold or the validity of a statute. Appeals and writs of error shall lie from the final orders, judgments or decrees of the circuit

courts

directly to the Supreme Court, in all criminal cases and in cases involving a franchise or freehold or the validity of a statute."

(146 N.E.)

Jurisdiction of appeals and writs of error | right of appeal to any court. Damon v. in the classes of cases which go directly to Barker, 239 Ill. 637, 88 N. E. 278. Moreover, the Supreme Court was not therefore withheld from the Appellate Courts by the Constitution; but cannot be exercised by those courts, because it was not conferred upon them by the General Assembly.

Section 8 of the Appellate Court Act applies only to final judgments, orders, or decrees. Prior to July 1, 1887, no appeal could be taken in this state from any interlocutory order or decree. On that day there came in to effect an act to provide for appeals from interlocutory orders granting injunctions or appointing receivers. Laws 1887, p. 250. Originally an independent act, it is now section 123 of the Practice Act of 1907. That section provides:

* *

"Whenever an interlocutory order or decree is entered in any suit pending in any court in this state, granting an injunction, or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, ** an appeal may be taken from such interlocutory order or, decree to the Appellate Court of the district wherein is situated the court granting such interlocutory order or decree. No appeal shall lie or writ of error be prosecuted from the order entered by said Appellate Court on any such appeal."

Jurisdiction of appeals from interlocutory orders or decrees of the classes specified is

it is concerned with final, and not with interlocutory orders, judgments, and decrees. There must be a final judgment or decree which settles the rights of the parties in respect to the subject-matter of the suit and concludes them until it is reversed or set aside to authorize an appeal to this court. People v. Drainage Com'rs, 282 Ill. 514, 118 N. E. 742; Mussey v. Shaw, 274 Ill. 351, 113 N. E. 605; Cunningham v. Loomis, 17 Ill. 555; Keel v. Bently, 15 Ill. 228. The order of the circuit court overruling the motion of the appellants to dissolve the temporary injunction did not determine the merits of the controversy nor adjudicate finally the rights of the parties. From such an order, interlocutory in character, no appeal lies to this court. Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, 140 N. E. 49; Craig v. Craig, 246 Ill. 449, 92 N. E. 925; Keel v. Bently, supra; Knapp v. Marshall, 26 Ill. 63; Hawkins v. Burwell, 191 Ill. 389, 61 N. E. 68; Pentecost v. Magahee, 4 Scam. 326.

The appeal should have been taken to the Appellate Court for the Second District, and the case will be transferred to that court. Cause transferred.

SON, Mayor, et al.

(316 III. 11)

PEOPLE ex rel. MCAULIFFE v. SAME.

(Nos. 15289, 15290.)

(Supreme Court of Illinois. Feb. 17, 1925.) 1. Certiorari 70(3)-Judgment of circuit court in certiorari proceedings self-executing.

thus expressly conferred upon the Appellate PEOPLE ex rel. MCDONNELL v. THOMP. Courts, and the orders of those courts on such appeals are not subject to further review. Section 123 of the Practice Act is the only statutory provision for appeals from interlocutory orders, and since the right to an appeal is strictly statutory (Drainage Com'rs v. Harms, 238 Ill. 414, 87 N. E. 277; Lower Salt Fork Drainage District v. Smith, 257 Ill. 52, 100 N. E. 179), no appeal from any interlocutory order or decree will lie, unless taken in accordance with that section. [2, 3] But it is argued that this appeal, under section 118 of the Practice Act, should be taken directly to this court. That section provides that appeals from and writs of er

ror to circuit and certain other courts-
"in all criminal cases below the grade of felony
shall be taken directly to the Appellate Court,
and in all criminal cases above the grade of
misdemeanors and cases in which a franchise
or freehold or the validity of a statute or a
construction of the Constitution is involved;
and in cases in which the validity of a municipal
ordinance is involved and in which the trial
judge shall certify that in his opinion the pub-
lic interest so requires, and in all cases relat-
ing to revenue, or in which the state is inter-
ested, as a party or otherwise, shall be taken
directly to the Supreme Court."

Section 118 of the Practice Act directs to what court an appeal which may be allowed by law shall be taken; but it confers no

Judgment of circuit court in certiorari, quashing record of civil service commission discharging second assistant fire marshal, is selfexecuting, and its operation, in absence of special statute to contrary, is not suspended by an appeal or supersedeas bond or writ of error. 2. Judgment 479-Judgment, quashing record of civil service commission discharging relator, cannot be collaterally attacked until set aside or reversed.

Judgment of the circuit court in certiorari proceedings, quashing record of civil service commission discharging relator, was a legal determination that relator was entitled to be restored to his office, and cannot be collaterally attacked until reversed or set aside.

3. Certiorari 37-Incumbent not proper party in certiorari proceedings by ousted official to quash record discharging him.

In certiorari proceedings by second assistant fire marshal to quash record of civil service commission discharging him from office, the present incumbent of such office was not a proper party to such proceedings.

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

4. Mandamus 77(4)-Proper remedy to re-, store one illegally removed to possession of office.

Mandamus is proper remedy to restore a party to possession of an office from which he has been illegally removed and to replace him

on the pay roll.

5. Mandamus 176-Judgment compelling reinstatement in office may include command to pay salary.

A judgment awarding writ of mandamus to compel reinstatement in office may include command to pay salary.

6. Mandamus 107-Will issue to compel payment of salary during illegal removal, though salary paid to another illegally appointed in relator's stead.

Though payment in good faith of salary of an office, to a de facto officer bars action by de jure officer for such salary, where relator was illegally removed from office and his salary paid to one illegally appointed in his stead, mandamus will be awarded requiring reinstatement and payment of salary during his illegal re

moval.

Separate petitions, consolidated for hearing, by the People, on the relation of John C. McDonnell, and by the People, on the relation of Jeremiah C. McAuliffe, against William Hale Thompson, Mayor, and others, for mandamus to compel reinstatement of relators to office. Writs awarded.

department in 1885, and from that time advanced grade by grade, and in 1918 was legally appointed and qualified as second assistant fire marshal, an office or position classified under the Civil Service Law (Smith-Hurd Rev. St. 1923, c. 241⁄2), and con

tinued in that office or position until September 23, 1922, when he was brought before the civil service commission on certain charges set forth in the petition. The civil service commission on said last date entered an order on the charges, directing the discharge of the relator from his office or position, and since November 1, 1922, defendant Patrick Egan has been discharging the duties of second assistant fire marshal and drawing the compensation for such office or position. Thereafter, in certiorari proceedings in the circuit court of Cook county, the record of the civil service commission discharging the relator was "quashed and for naught esteemed" by the judgment of the circuit court entered in such proceedings. The judgment of the circuit court had not been reversed or modified up to the filing of this petition. Thereafter, on January 4, 1923, the relator served a written notice upon the mayor, the city treasurer, the city comptroller, and the fire marshal, advising them that the circuit court had entered an order in the certiorari proceedings quashing the record of the proceedings of the civil service commission in the matter of the charges against the relator; that he had deposited with the city treasurer a certified copy of such order. In the notice he demanded that they restore him to the office or position aforesaid, for which he was ready, willing, and able to discharge the duties; that they pay to him the salary appropriated for said office or posiDUNCAN, C. J. The relator John C. Mc- tion from December 18, 1922, the date of the Donnell on leave filed in this court a petition judgment of the circuit court; and that such for mandamus commanding the defendants, salary be paid in the future to him and to the mayor, fire marshal, city comptroller, none other. The defendants refused to recogcity treasurer, the civil service commission-nize relator as second assistant fire marshal, ers, the second assistant fire marshal, and and defendant Egan is still discharging the Patrick Egan, acting second assistant fire duties thereof and drawing the pay therefor. marshal, of the city of Chicago, to forthwith The other allegations in the petition were recognize him as second assistant fire mar- denied seriatim by the answer. shal and chief of fire prevention and public safety of said city, to place him upon the payroll, and pay him the moneys appropriated by the city council as salary for said office from December 18, 1922, and thence until he is retired or legally removed from said office or position, as may be provided for by law, and for other and further relief. The defendants filed a joint and several answer to the petition, to which the relator filed a general and special demurrer, and the cause has been submitted on the petition, answer, and demurrer.

Scott, Bancroft, Martin & MacLeish, of Chicago (Edgar A. Bancroft, Vincent D. Wyman, and Lester L. Falk, all of Chicago, of counsel), for petitioners.

Samuel A. Ettelson, Corporation Counsel, of Chicago (Gilbert G. Ogden, of Chicago, of counsel), for defendants.

The facts stated in the petition and admitted by the answer are substantially the following: Relator joined the Chicago fire

The defendants set up as defenses in their answer the following matters, in substance: First, that the appeal from the certiorari judgment operated as a supersedeas; second, that the certiorari judgment was erroneous and void; third, the defendant Egan, who is acting as second assistant fire marshal, was not a party to the certiorari proceedings, and is not affected by the judgment; fourth, this proceeding in mandamus is not a proper proceeding to determine the right of Egan to said office or position; and, fifth, Egan has received the pay of the office or position, and the relator cannot recover it from the city. These five points or alleged defenses to the petition constitute the real defense for the

« ForrigeFortsett »