« ForrigeFortsett »
or under the circumstances shown in this nance provided for openings on both sides case, are overruled by the court below, this for the purpose of connections with lateral court will not review the action of that sewers or drains, and it was there held court in the premises, even though it may proper to introduce other ordinances probe that there is among such legal objections viding for the construction of lateral branchsome objection that is meritorious, and es of the sewerage system, for the purpose which should have been sustained, had it of showing good faith by the city in carrybeen properly presented. The better practice ing out the provisions of the ordinance for for appellant to have followed would have lateral connections. Following the reasonbeen to have ascertained what legal objec ing of that opinion, we think the evidence tions might properly be made by him in this here objected to was properly admitted. proceeding, and to have so framed his ob It merely went to show that the property jections as to make them applicable to the owner would obtain the benefits which the conditions shown by the record, and not to special assessment ordinance was designed have filed the so-called "blanket form" of to confer. objections, with the hope and belief that It is then said that instruction I, given some one of the numerous objections speci at the instance of petitioner, was erroneous, fied therein might cover some valid objec because in stating the issues to be tried tion thereafter to be discovered. In what it recites, in a preliminary way, that the ever form his objections appeared, it was assessment is levied by the authority of his duty, if he appeared by attorney, to be the board, which is said to be equivalent represented by counsel who would ascertain to saying to the jury that it was lawfully what the objections filed were and be able levied. Inasmuch as the jury was not reto advise the court upon what ground the quired to determine whether the assessment objections should be sustained. The filing was lawfully levied, the instruction was not of objections in the so-called "stereotype rendered harmful by that recital. blanket form,” which is a long list of ob Instruction K is objected to because it jections general in character, so worded as tells the jury that the municipal authorities to cover every possible legal objection that are the sole judges of the necessity for the can be expected to arise in a special assess improvement, and that the question of its ment proceeding, without regard to what ob necessity is not for the jury. This was a jections find support in the facts, and which correct statement of the law. Cram v. City have been frequently filed in proceedings of of Chicago, 138 Ill. 506, 28 N. E. 757. this character arising in Cook county, does Instruction 0 is objected to because it, not meet with the approval of this court. advises the jury that, if the value of the The practice herein above suggested as the property be increased for any use for which better practice for appellant to have follow the property is adapted, the property will ed is the one which should be adopted in be benefited. This is said to be erroneou's each instance.
for the reason that the value of the property In accordance with the law, the questions for some purposes might be entirely dewhether the property of objector was as stroyed, but that if it is benefited for any sessed more than it would be benefited, and purpose the jury should then regard it as whether it was assessed more than its pro receiving a benefit from the improvement, portionate share of the cost of the improve even though the property would be of less ment, were tried by jury, and the verdict value after the improvement than before, was for appellee.
The instruction is not properly the subject of The ordinance originating the improve this criticism. Its meaning is that the imment did not provide for connecting the provement will benefit the property if it inwater mains, which were to be laid to the creases its value. Under that instruction the lawn hydrants, with other water mains or jury would not be warranted in finding that with a water supply, and did not provide the property would be benefited if they believfor connecting the electric cables with any ed that it would sustain damages in excess of other cable or source of electric current; the benefits it would receive. The instruction and it is assigned as error that the court correctly stated the rule laid down in Clark wrongfully allowed petitioner to show, by v. City of Chicago, 166 Ill. 84, 46 N. E. 730. its engineer and by an ordinance which was Other objections made to the action of passed during the trial, that these connec the court in giving and refusing instructions tions were to be made so that the property are equally without any proper basis in the owner would derive the benefits which would law. We have examined the instructions accrue from the use of the water supply given, and are satisfied that the jury were which might be carried through the mains accurately and fairly instructed in reference and the electric current which might be to the questions which were before them carried over the cables, in accordance with for determination. the purpose which animated petitioner in We have in this opinion disposed of all seeking to make the improvement.
the material questions arising upon this recIn Gray v. Town of Cicero, 177 Ill. 459, ord which counsel has discussed in his brief 53 N. E. 91, the improvement under consid and argument. It is true other alleged ereration was an outfall sewer, and the ordi rors are enumerated in the statement pre
ceding the brief and argument, but as counsel has not attempted to demonstrate by reference to the abstract that such other errors exist, or to show that they were prejudicial in character, but has merely recited the existence of such other errors in his statement, and as such other errors are not mentioned or relied upon either in the brief or argument they must be considered as waived. Keyes v. Kimmel, 186 Ill. 109, 57 N. E. 851, and cases there cited.
The judgment of the circuit court will be affirmed.
(222 Ill. 522.) DESLAURIES et al. v. SOUCIE et al. (Supreme Court of Illinois. Oct. 23, 1906.) 1. CERTIORARI-DISCRETION AS TO GRANTMOTION TO QUASH.
A writ of certiorari is not granted as a writ of right, and may be granted or denied in the discretion of the court according to the showing made in each particular case; it may also be quashed and the petition dismissed on motion filed after its issuance, and before return, on the ground that public detriment and inconvenience would result from quasbing, the original proceedings the validity of which is attacked by the petition and such facts may be shown by extrinsic evidence.
[Ed._Note.-For cases in point, see vol. 9, Cent. Dig. Certiorari, $$ 15, 154, 158.] 2. SAME_WRIT AGAINST DRAINAGE DISTRICT -APPEAL-WAIVER OF DEFECTS.
In proceedings for a writ of certiorari to set aside the organization and proceedings of a drainage district, the petitioners cannot on appeal deny the sufficiency of a notice of a meeting which they expressly averred in their petition was held on proper notice. 3. SAME-DEFENSES-PUBLIC DETRIMENT.
A writ of certiorari cannot be used to test the legality of the organization of a drainage district on technical grounds after the lapse of several months, during which time it has been in operation, made contracts, and levied taxes, with the full knowledge of the petitioners, and where great public detriment would result from the quashing of the proceedings, and no errors are shown which will cause substantial detriment to the petitioners.
defendants moved to quash the writ and dismiss the petition. The motion is set out in the record, and states that various acts had been performed before the filing of the petition assuming the validity of the organization, that the quashing of the organization would result in great public inconvenience and detriment, and that no injustice had been done the petitioners. On a hearing before the court on this motion it appeared that the petition for the organization of the district was filed June 20, 1903; that various meetings were held, and at an adjourned meeting July 20, 1903, certain changes were made in the boundaries of the district taking out certain lands and including certain others not mentioned orig. inally, among which were those of William Graham and Robert Parker. It is claimed that the record does not affirmatively show notice to Parker and Graham. At an adjourned meeting July 30th the district was organized, and an engineer previously employed made a detailed report of the survey of the district and an estimate of the cost, with specifications. The commissioners made contracts for right of way with various property owners and commenced proceedings for condemnation against others, some of which were settled by agreement, and others tried and damages awarded. Later on the land in the district was classified, and notice given that the commissioners would hear objections to the same. A hearing was had in accordance with such notice and objections overruled. On November 17, 1904, the commissioners made a special assessment against the highways, and in February, 1904, one against the lands. On March 2d the commissioners made an order for the collection of the assessment, to be paid in thirty days. March 12th an election was held, at which appellant Deslauries and appellee Graham voted, and at which Graham was elected commissioner. This petition for writ of certiorari was filed on April 28, 1904. After hearing, the motion to quash the writ was allowed and petition dismissed. On appeal to the Appellate Court the judgment of the lower court was affirmed.
W. R. Hunter and Granger & Granger, for appellants. A. E. Smith and Charles B. Campbell, for appellees.
Appeal from Appellate Court, Second District.
Petition by John Deslauries and others against Treffly Soucie and others for writ of certiorari. Petitioners appeal from a judgment of the Appellate Court (122 Ill. App. 81), affirming a judgment of dismissal. Affirmed.
Appellants filed a petition in the circuit court of Kankakee county for a common-law writ of certiorari directed against appellees, drainage commissioners of Union District No. 1 of the towns of Manteno and Sumner, in said county, commanding that they certify a complete transcript of the record and papers relating to the attempted organization of the said district; that the court might inspect such records and proceedings and set them aside if found irregular. The writ was issued on a vacation order. The
CARTER, J. (after stating the facts). Appellants have not complied with rule 15 of this court (68 N. E. vii) by filing a copy of the opinion of the Appellate Court. We would be justified in dismissing the appeal on this ground alone, but prefer to con. sider and dispose of the case on the briefs and record presented.
The writ of certiorari is not granted as a writ of right, and may be granted or denied in the discretion of the court, according to the showing made in each particular case. Trustees of Schools v. School
Directors, 88 Ill. 100; Commissioners of ably collected-in short, that it had been Highways V. Barnes, 195 Ill. 43, 62 N. E. carrying out the purposes of its organiza775; 4 Ency. of Pl. & Pr. p. 31. Being ad tion as a' going district for months, and dressed to the sound judicial discretion of therefore the common-law writ of certiorari the court, evidence extrinsic to the record could not be used to test the legality of may be very properly received before issu its existence. Lees v. Drainage Com’rs, 125 ing the writ, to show that no injustice has Ill. 47, 16 N. E. 915; Sanner v. Union Drainbeen done; for on the return of the writ age District, supra; School Directors v. the court will only look to the record. School Trustees, supra. From the time the Board of Supervisors V. Magoon, 109 Ill. petition for this district was filed, June 20, 142; Hyslop v. Finch, 99 Ill. 171; Sampson 1903, until the petition for the writ of cerv. Commissioners of Highways, 115 Ill. App. tiorari, April 28, 1904, steps were continu443; School Directors v. School Trustees, ous for organizing the district and carrying 91 Ill. 96. After the writ has been issued, on its business. Manifestly, from the evion motion to quash the writ and dismiss dence in this record all three appellants the petition extrinsic evidence may then be were cognizant of the entire proceedings. heard, not for the purpose of contradicting One of them voted at the election for drainor enlarging the record, but to show that age commissioners; another entered into a public detriment and inconvenience might contract for right of way across her lands, result from quashing the original proceed
and the third waived all claim for damages. ings. Drainage Comrs. v. Volke, 163 Ill. 243,
The lack of notice to Graham certainly can45 N. E. 415; Sampson v. Commissioners of not be raised by them, as he is here contendHighways, supra. Appellants insist that the ing for the legality of the proceedings. The record introduced below, of the proceedings
other landowner, Parker, has not complained of the commissioners, can only be looked because of any lack of notice. If there be to here. But the case was not heard on this a defect in the notice of such nature that it theory. There is nothing in the testimony might be raised by appellants, such defect to show that the evidence introduced by the could as well be presented by a writ of quo appellees is the entire record that would warranto, and the district could then prove have been made a part of the return to the actual notice, even though such notice was writ. The writ was disposed of in the trial
not shown by the record. On the facts precourt on motion to quash. We do not think sented here, this case comes clearly within the trial court erred in so doing without
the doctrine in School Directors v. School first requiring the defendants to make re
Trustees, supra, where, by reason of lapse turn to the writ. Appellants argue that there
of time, acquiescence of the parties comwas a defective notice as to one of the plaining, incurring debts, levying taxes, etc., meetings of the commissioners, in that there it would have been an abuse of the sound was a blank in the copy offered in evidence
legal discretion of the court and a great pubwhere the date of the meeting should have
lic detriment to have quashed the proceedappeared. They are not in a position to
ings. The errors, at most, are technical and urge that point at this time, as they express
harmless, so far as appellants are concerned, ly averred in their petition for the writ of and are not shown to be such as would cause certiorari that a proper notice had been
substantial injustice to any one. given of the meeting in question, and they
The judgment of the Appellate Court will cannot for the first time, on appeal, urge
accordingly be affirmed. that point. Chapman v. Drainage Com’rs,
Judgment affirmed. 28 Ill. App. 17.
The principal contention of appellants is FARMER and VICKERS, JJ., having that the record in this case does not af heard this case in the Appellate Court, took firmatively show the required notice to Gra
no part in its decision here. ham and Parker, who were not signers of the original petition, and whose land was afterwards taken in at an adjourned meeting.
(222 Ill. 494) Neither Graham nor Parker is here object MERCHANTS' LOAN & TRUST CO. V. ing to the validity of the organization of
EGAN. the district. To the contrary, Graham is one
(Supreme Court of Illinois. Oct. 23, 1906.) of the drainage commissioners, and is here contending for the legality of the proceed
1. GIFTS-BURDEN OF PROOF.
Where the title to property is claimed as ings. It is urged that on the authority of
a gift, the burden is on the party claiming the Sanner v. Union Drainage District, 175 Ill. gift. 575, 51 N. E. 857, such question can be rais [Ed. Note.--For cases in point, see vol. 24, ed in this manner by any interested parties.
Cent. Dig. Gifts, § 81.] The court evidently allowed the motion to 2. APPEAL-FINDINGS-CONCLUSIVENESS. quash, on the ground that the district had
The findings of fact of a trial court af
firmed by the Appellate Court, cannot be disbeen organized and in operation for some
turbed by the Supreme Court. time, and that contracts had been made, ex
[Ed. Note.--For cases in point, see vol. 3, penses incurred, taxes levied, and presum Cent. Dig. Appeal and Error, ss 4322-4352.]
3. WITNESSES TRANSACTIONS WITH DECE Dr. Thaddeus J. Butler was a Catholic DENT-CALLING BY ADVERSE PARTY.
priest of the diocese of Chicago, and had Under Hurd's Rev. St. 1905, p. 118, C.
officiated as rector of St. John's parish, in 3, § 81, providing that when any executor shall state on oath to any county court that he be that city, from 1887 until shortly before his lieves that any person has in his possession prop death June 23, 1897, he left Chicago for erty of the estate, the court may require such
Rome, Italy, expecting to be there consecratperson to appear before it and examine him, and chapter 51, $ 2, declaring that no party to
ed as Bishop of Kansas. He died at Rome, any civil suit shall be allowed to testify therein July 16, 1897. He made his will June 23, of his own motion, unless when called as a 1897, the day he left Chicago. The followwitness by the adverse party so suing or defend
ing bequests were made by the will; Tesing, where an executor introduced a defendant's testimony taken at the hearing on cita
tator's brother, Patrick T. Butler, $3,000 for tion in the probate court, he was not thereby the use of the Church of Immaculate Concalled as a witness by the adverse party, and
ception, Chicago; Miss Nellie Cunningham, his incompetency as a witness concerning transactions with decedent aside from admissions
$5,000 for the convent of Rathfarnum, Iremade on his examination was not affected. land, conditioned on certain life payments
[Ed. Note.--For cases_in point, see vol. 50, to testator's sister; testator's brother, TranCent. Dig. Witnesses, $ 722.]
cis J. Butler, $1,000, or £200, in case he sur4. SAME.
vive testator; the Rev. Dominick Egan, Under Hurd's Rev. St. 1905. c. 51, § 2,
$2,000 to be expended for masses for the repermitting an interested person to testify to facts occurring after the death of a deceased
pose of testator's soul; Archbishop P. A. person, the calling of a witness as to the pos Feehan, for the use of the Church of St. session of certain bonds of decedent did not
James at Rockford, Ill., of which testator make him a witness as to all questions.
was formerly pastor, $3,000. The last par[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 722.]
agraph of the will reads as follows: "The 5. EVIDENCE-PRODUCTION OF INSTRUMENTS
rest, residue and remainder of all my real SECONDARY EVIDENCE.
and personal estate I give, devise and beIn a suit by an executor to recover certain queath the same unto the Rev. Dominick property of his decedent, it was proper to ex
Egan, of St. Stephen's Church, Chicago, my clude testimony concerning a memorandum in the handwriting of deceased in possession of
very dear and trusted friend. I hereby apcounsel for the executor, where the production point the said Rev. Dominick Egan executor of the original was not insisted on.
of this my will, and ask that no bonds be [Ed. Note. For cases in point, see vol. 20, required of him." At the time of testator's Cent. Dig. Evidence, $ 642.]
death his will was in a vault in the Rookery 6. SAME-DISCRETION OF COURT.
Building, in the city of Chicago. Miss MarIn a suit by an executor to recover props erty of deceased, where the executor was shown
garet McNamara, his housekeeper, was cusa copy of a memorandum made by deredent, todian of the will and delivered it to the which was claimed to be the same copy that Rev. Egan, informing him that he was aphad been previously shown to him, and was asked if it was not the same, the court did not
pointed executor. In 1895 testator rented abuse its discretion in refusing to permit him
box 5,294 from the National Safety Deposit to answer, and in refusing to permit it to be | Company in the First National Bank buildintroduced after testimony by defendant that it
ing of Chicago. This box was leased to Butwas the same copy he had shown witness; there being no offer of the original memorandum.
ler in his own name and P. J. Sexton was [Ed. Note. For cases in point, see vol. 20,
named as deputy. The lease of the box was Cent. Dig. Evidence, $ 642.]
afterwards changed on June 24, 1896, at the
testator's request, to run to him and Sexton Appeal from Appellate Court, First District, Action by Dominick Egan, executor of the
jointly. The testator had a key to the box
after the lease was changed. This key he will of Thaddeus J. Butler, deceased, against
had when he left Chicago for Rome. SexPatrick J. Sexton. On the death of defend
ton testified that he had a key to the box ant, his executor, the Merchants' Loan &
in March, 1897. He also testified that he Trust Company, was substituted. From a
had a box of his own in another safety vault judgment of the Appellate Court affirming
and testator had other boxes in other vaults. a judgment for plaintiff, the defendant ap
There is nothing in the evidence to indicate peals. Affirmed.
that Sexton ever kept any of his own papers This is an action in trover, brought by or documents in box 5,294, or that he ever appellee in the circuit court of Cook county opened the box until after Dr. Butler's death. against Patrick J. Sexton (who died pending He testified that he was at the box once in the trial and whose executor was substituted March, 1897, with the testator. After Dr. as defendant) to recover certain bonds of Butler's death Sexton stated that the third the face value of $29,000 and a promissory day following the decease he opened the box note for the sum of $5,000, payable to the and found a large envelope marked "Instrucorder of Thaddeus J. Butler and made by tions,” in Dr. Butler's handwriting; that John Ireland. Defendants pleaded general in this envelope there was some correspondissue. Jury was waived, and the cause sub ence between Dr. Butler and Archbishop mitted to the court for trial. The court Ireland, with a note of the latter for $5,000; found for the plaintiff, assessing his damages that there was written on the envelope: at $34,378.52, and entered judgment on the "Friend P. J. Sexton: Destroy this correfinding.
spondence in the event of my death,” and 78 N.L.-51
"$5,000-No," below. He found in the box another large envelope, apparently containing securities, on the back of which were memoranda scratched both ways; the purport of which Sexton had no special recollection. Sexton claimed that Dr. Butler, shortly prior to his death, gave him the bonds and note. The probate court found the bonds and note a part of Dr. Butler's estate. On appeal from the decision of that court the matter was heard in the circuit court and decided in the same way.
That cause was appealed to the Appellate Court and error confessed as to the description of the bonds, but denied in all other respects. This suit was then started in the circuit court, and judgment rendered as heretofore stated and affirmed by the Appellate Court.
McCulloch & McCulloch, for appellant. Moran, Mayer & Meyer, for appellee.
CARTER, J. (after stating the facts). The finding of the Appellate Court is conclusive as to all the facts in the case. Appellant claims that the trial court ruled improperly on the admission and exclusion of testimony. There is some discussion in the briefs as to the burden of proof. We think where the title to property is claimed as a gift, the burden of proof is undoubtedly on the one claiming the gift. In any event, the cause was submitted to the trial court and its finding cannot be disturbed, since that finding has been affirmed by the Appellate Court. The issue in Riggs v. Powell, 142 Ill. 453, 32 N. E. 482, cited by appellant on this question, so differs from the issue in this case that it can have little weight here.
The serious contention centers about the right of Sexton to testify on certain subjects about which he was questioned by his counsel. Sexton was called as a witness under section 81, c. 3, Hurd's Rev. St. 1905, p. 118, on the administration of estates, which is as follows: “If any executor or administrator, or other person interested in any estate, shall state upon oath, to any county court, that he believes that any person has in his possession, or has concealed or embezzled, any goods, chattels, moneys or effects, books of account, papers or any evidences of debt whatever, or titles to lands belonging to any deceased person; or that he believes that any person has any knowledge or information of or concerning any indebtedness or evidences of indebtedness, or property titles or effects, belonging to any deceased person, which knowledge or information is necessary to the recovery of the same, by suit or otherwise, by the executor or administrator, of which the executor or adininistrator is ignorant, and that such person refuses to give to the executor or administrator such knowledge or information, the court shall require such person to appear before it by citation, and may examine him on oath, and hear the testimony of such executor or administrator, and other evidence offered by either party,
and make such order in the premises as the case may require.” Sexton's testimony on the citation before the probate court was taken down in shorthand, a part of it having been introduced by appellee on this trial in the court below, and the balance having been introduced by appellant. Appellant's counsel contend that, because of the introduction of the evidence taken on citation before the probate court, Sexton was rendered a competent witness to testify as to all matters pertaining to the bonds and note, whether occurring before or after the death of Dr. Butler. It is contended that by introducing this evidence Sexton was thereby called as a witness by the executor, who was an adverse party within the meaning of section 2, c. 51, Hurd's Rev. St. 1905, and that being SO called he was rendered competent to testify in the present suit as to all matters material and relevant. Section 2 is as follows: “No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely.” There are four exceptions given in the statute, none of which are applicable to the present point under discussion.
The incompetency of witnesses because of interest has invoked much discussion. Many authorities have been cited by learned counsel in their briefs. Appreciating the importance of the question we have given it full and careful consideration. In the wellconsidered opinion of the Appellate Court by Adams, J., the point at issue is clearly set forth, as follows: “The language of section 2, c. 51, is: 'No party to any civil action
shall be allowed to testify therein of his own motion or in his own behalf
unless when called as a witness by such adverse party so suing or defending. By the section the prohibition against testifying refers expressly to the pending suit in which one sues or defends in one of the characters named in the section, by the use of the word 'therein,' and the exception to the prohibition, 'unless when called as a witness, etc., is an exception to the prohibition, and the section is to be read as if the word 'therein' (which is evidently understood] followed next after the word 'witness,' so that the reading would be, 'unless when called as a witness therein,' etc. The statute does not mean that if the party has been called by the 'adverse party so suing or defending' in a previous suit or proceeding between the same parties and in respect