« AnteriorContinuar »
(1 Chitty's Pl. 46; Dicey on Parties to Action, 247, 528; I Saunders' Pl. & Ev. 10; Hurd's Stat. 1911, chap. I, sec. 4; Conley v. Good, Breese, 135; Lurton v. Gilliam, I Scam. 577; Puschel v. Hoover, 16 Ill. 340; Pearce v. Pearce, 67 id. 207; Ross v. Allen, 67 id. 317; Sinsheimer v. Skinner Manf. Co. 165 id. 116.) The general rule as thus stated is conceded to be correct by appellant except in cases where the pleadings filed by the plaintiff do not inform the defendant, like the common counts, of the precise claim of the plaintiff when it is urged the proof of joint liability should be admitted under the general issue. We do not understand such to be the rule in that state of the record. The defendant, if he desired to plead the nonjoinder of his partner, should have done so by a plea in abatement, (Puschel v. Hoover, supra,) and if he was not sufficiently advised of the claim of the plaintiff from the declaration and affidavit filed, to enable him to plead to the action, he should have asked the court that he be advised of the character of the plaintiff's claim by a bill of particulars. When he failed to take that step and pleaded to the merits he admitted there was no foundation for a plea in abatement. (1 Chitty's Pl. 440.) The fact that the joint liability is not claimed to cover all the items of plaintiff's demand does not abrogate the rule requiring that a nonjoinder of parties be set up by a preliminary plea, which gives the plaintiff a better writ if he chooses to avail himself of it. I Chitty's Pl. (4th Am. ed.) 458; Hill v. White, 6 Bing. 23; Prunty v. Mitchell, 76 Va. 169; Wilson v. McCormick, 86 id. 995.
There are a number of other questions discussed in appellant's brief, namely, (1) that "the verdict is contrary to the evidence;" (2) that "the court erred in not requiring the plaintiff to produce its books" of account, to show to whom the coal was charged; and (3) that "the decision of the Appellate Court is erroneous.” The first of these questions this court is not authorized to pass upon; the sec
ond, in view of the holding of this court, is immaterial; while the last has been determined in the first paragraph of the opinion.
Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.
THOMAS L. ALDRIDGE et al. Appellants, vs. W. SCOTT MATTHEWS et al. Appellees.
Opinion filed December 17, 1912-Rehearing denied Feb. 5, 1913.
1. DRAINAGE—jurisdiction of the circuit court is not limited to organization of farm drainage districts. Under the act of 1909, giving to circuit courts concurrent jurisdiction with county courts in the matter of organizing farm drainage districts and farm drainage and levee districts, such jurisdiction is not confined to the organization of districts under the Farm Drainage act, but includes districts to be organized under the Levee act.
2. SAME―what is a sufficient description of one point of district's boundaries. The description of one point of the boundaries of a drainage district as "the high-water mark of 1903" is sufficient, where engineers testify that such mark still exists and can be determined within a couple of inches, and that a competent surveyor can locate the boundary lines of the district.
3. SAME what objections to the petition and notice are too refined for practical use. Objections to the petition and notice in a drainage case, to the effect that the petition only gave the proposed boundaries of the district whereas the statute requires it to give the boundaries, and that the notice recited that the petition was presented to and filed with the clerk of the circuit court, whereas the statute requires the notice to state in what court the petition was filed, are too refined for practical use.
4. SAME what are not substantial objections to petition and affidavit. Objections that a drainage petition is insufficient because it states that the petitioners represent the major portion, in area and acreage, of the land lying within the boundaries of the proposed district, instead of the land to be reclaimed or benefited, and that the affidavit, which stated that the petitioners represented the major portion of the lands proposed to be reclaimed or benefited, omitted the words "in area," are not substantial ones.
5. SAME-Section 16 of the Levee act, concerning effect of reversal, applies to orders of organization previously entered. Section 16 of the Levee act, providing that a reversal, upon writ of error, of an order organizing a drainage district, shall not impair or invalidate the organization as to other persons not suing out the writ, applies to orders of organization entered before said section took effect, as a writ of error is a new suit and the statute then in force controls the effect of a judgment of reversal.
6. SAME-effect of judgment of Supreme Court holding organization order void. A judgment of the Supreme Court holding that an order organizing a drainage district is void for want of jurisdiction establishes nothing as to persons who were not parties to the writ of error in the Supreme Court, but when the claim is set up, to defeat the organization of another district, that part of the land is embraced in the former district, the objectors making such claim have the burden of proving it affirmatively, and the petitioners who were not parties to the writ of error and who have not estopped themselves to dispute the existence of the former district may introduce the record, in connection with the judgment, to show that the order organizing the former district was void and that therefore there was no such district in existence.
7. SAME what does not work an estoppel to deny existence of a district. The fact that a drainage district, organized under an order of the county court which was void for want of jurisdiction, had become indebted before the order was declared void on writ of error, does not work an estoppel against anyone who did not participate in some way in the organization of the district or the creation of the debt, to deny the existence of the district when its existence is asserted to defeat the organization of another district embracing part of the lands included in the former.
8. SAME when objection that order organizing district is void may be urged against collection of assessment. Where an order organizing a drainage district is held void by the Supreme Court, on writ of error, because the county court was without jurisdiction, the persons who were plaintiffs in error may dispute the organization of the district in a proceeding to collect an assessment.
9. JUDGMENTS AND DECREES—a void judgment may be ignored. A judgment of a court entered without jurisdiction is a nullity, and may be called in question at any time and by any person without resorting to an appeal or writ of error to secure a reversal; and such a judgment, being void, may be ignored or disregarded by any person not estopped in some way or precluded by his own act from questioning it.
VICKERS, J., dissenting.
APPEAL from the Circuit Court of Union county; the Hon. WILLIAM N. BUTLER, Judge, presiding.
R. J. STEPHENS, for appellants.
A. NEY SESSIONS, JAMES LINGLE, and RAY, DOBBINS & DOBBINS, for appellees.
Mr. JUSTICE CARTWRIGHT delivered the opinion of the
A petition by Thomas L. Aldridge and seventeen others, ten of whom are appellants, praying for the organization of a drainage district under the act commonly known as the Levee act, was filed in the circuit court of Union county. The appellees appeared and filed objections. The court sustained several of the objections and dismissed the petition at the costs of the petitioners, from which judgment this appeal was prosecuted.
The first objection was that the circuit court had no jurisdiction to organize a drainage district under the Levee act, and, although this objection was not sustained by the court, it is contended that the judgment was right because of the want of jurisdiction. The act of 1909 (Laws of 1909, p. 171,) gives to circuit courts concurrent jurisdiction with county courts in all matters pertaining to the organization of farm drainage districts and farm drainage and levee districts, and the argument is, that farm drainage and levee districts do not include districts organized under the Levee act with drains, ditches and levees for agricultural, sanitary and mining purposes. A district organized under the Farm Drainage act could not be called a farm drainage and levee district. As farm drainage is equivalent in meaning to drainage for agricultural purposes, a district organized under the Levee act may properly be called a farm drainage and levee district. The circuit court had jurisdiction.
One objection urged was that the boundaries of the district were not given with sufficient definiteness, the particular objection being that one point was the high-water mark of 1903. The engineers testified that the high-water mark still existed and could be determined within a couple of inches, and that a competent surveyor could locate the boundary lines. The description was sufficient.
Several petty and hypercritical objections were made to the petition, notice and affidavit, such as that the petition only stated the proposed boundaries of the district, whereas the statute required it to give the boundaries; and that the notice was insufficient because it recited that the petitioners presented and filed the petition with the clerk of the circuit court, while the statute required the notice to state in what court the petition was filed. It is also contended in the argument that the petition was not sufficient because it stated that the petitioners represented the major portion, in area and acreage, of the land lying within the boundaries of the proposed district, whereas the statute required that they should represent the major portion, in area, of the land to be reclaimed or benefited; also, that the affidavit accompanying the petition, which stated that the petitioners represented a major portion of the lands proposed to be reclaimed or benefited, omitted the words "in area," and might mean that the lands of the petitioners were more valuable than the remaining lands. None of these objections have substance or are of any importance and are too nice and refined for practical use. The petition, notice and affidavit were sufficient.
The substantial objection interposed was, that part of the lands were already a part of the Clear Creek Drainage and Levee District. A part of the petitioners were plaintiffs in error in Aldridge v. Clear Creek Drainage and Levee District, 253 Ill. 251, where it was decided that the county court had no jurisdiction to organize that district for want of a petition complying with the statute, and