Comm'rs of Subdistrict No. 6 v. McNulta

• Decision Date: 22 December 1909
• Citation: 242 Ill. 461,90 N.E. 223
• Parties: COMMISSIONERS OF SUBDISTRICT NO. 6 v. McNULTA.
• Court: Illinois Supreme Court

242 Ill. 461

90 N.E. 223

COMMISSIONERS OF SUBDISTRICT NO. 6

v.McNULTA.

Supreme Court of Illinois.

Dec. 22, 1909.

Error to Champaign County Court; T. J. Roth, Judge.

Classification of drainage lands by Commissioners of subdistrict No. 6, to which Donald McNulta, as trustee, filed objections. From an order modifying the classification, objector attempted to appeal, and, the motion of the commissioners of the district to strike the appeal bond from the files having been sustained, objector brings error. Writ dismissed.Welty, Sterling & Whitmore, for plaintiff in error.

Ray & Dobbins, for defendants in error.

Lotus Special Drainage District was composed of lands lying in Champaign, Piatt, and McLean counties, and was organized under the farm drainage act. After its organization the commissioners filed a certificate designating a certain portion of the lands embraced in said drainage district as subdistrict No. 6 of said Lotus Special Drainage District, and filed with said certificate a map showing the plan of drainage within said subdistrict. The lands of the plaintiff in error lie in said subdistrict and in McLean county. Plaintiff in error filed objections to the classification of his lands made by the commissioners. Said classification was modified to some extent by the commissioners, but, as confirmed by them, was unsatisfactory to plaintiff in error, and he endeavored to appeal from the confirmation. Within 10 days after the confirmation of the classification he filed with the clerk of the county court of Champaign county, which is the county wherein the greater portion of the lands of said Lotus Special Drainage District lie and the county in which the proceedings for the organization of said district were had, an appeal bond, reciting that he had appealed from the decision of the commissioners to the county court of McLean county, Ill. Said bond contained other provisions necessary to a valid appeal bond in such cases. Said bond was accompanied by affidavits of the solvency of the sureties and a motion and prayer for appeal to the county court of McLean county, Ill., and for the approval of said bond. The bond was approved by the clerk of the county court, and the case appears to have been placed upon the county court docket. Afterward, on the 3d of October, 1908, the commisioners filed a motion in the county court of Champaign county to dismiss the appeal. Nothing appears to have been done by the county court of Champaign county with said motion, and on the 12th day of February, 1909, the drainage commissioners filed a motion in said court to strike the appeal bond, ‘the purported approval of it,’ and the motion for its approval from the files. This motion was allowed on the 15th day of March, 1909, and this writ of error was sued out to review said order and judgment of the county court of Champaign county.

FARMER, C. J. (after stating the facts as above).

A motion has been made in this court by defendants in error, and taken with the case, to dismiss the writ on the ground that the order and judgment of the county court of Champaign county was not final, and is therefore not subject to review on writ of error. We are of opinion this motion is well taken. Striking the appeal bond and its ‘purported approval’ from the files was not an adjudication of the case, and was not a final judgment, subject to be reviewed on appeal or writ of error. Frederick v. Savings Bank, 106 Ill. 147;Lillard v. Noble, 159 Ill. 311, 42 N. E. 844. The remedy of plaintiff in error was mandamus. As this case presents questions that, so far as we know or are advised by briefs of counsel, have never been passed upon by this court, and as they will necessarily arise in the future procedure in the case, we have thought it not improper for the future guidance of the parties and the clerk to express our views as to the law governing appeals in such cases.

It will be seen from the preceding statement that the district is what is known as a special drainage district. It embraced lands lying in Champaign, Piatt, and McLean counties. The greater portion of the lands embraced in said district are situated in Champaign county, and the proceedings for the organization of the district were had in that county as the statute requires. Appeals from the confirmation by the commissioners of the classification of the lands in such districts are required by the act under which they are organized to be taken to the county court of the county in which the lands affected are situate. Counselfor both parties agree as to what court appeals in such cases shall be taken but disagree as to where the bond shall be filed and the appeal perfected. Defendants in error contend that this must be done in the court to which the appeal is taken. A determination of this question involves the construction of certain sections of the farm drainage act (Hurd's Rev. St. 1908. c. 42). Several kinds of drainage districts are provided for in the farm drainage act. The first are districts lying wholly within one town and therefore in one county; second, union districts, lying in two towns in the same or in different counties; third, special drainage districts, which embrace lands lying in three or more towns in the same or different counties. Section 49 of the farm drainage act (Hurd's Rev. St. 1908, c. 42, § 124) requires the petition for the organization of a special drainage district to be presented to the county court of the county in which the greater part of the lands lie. Sections 50 and 51 relate to the proceedings in the county court and the duties of the clerk of said court preliminary to the organization of the district. Section 52 provides that if the court shall find in favor of the organization of the district it shall enter an order organizing said district. Section 53 makes the county clerk of the county in which the proceedings are instituted ex-officio clerk of the drainage commissioners. Sections 57 and 58 provide for procuring right of way by condemnation and that such proceedings shall be in the court in which the proceedings for organization were had. Section 60 requires the commissioners to make a classification of the lands of the district and file the same in the office of the clerk of the county court. They shall fix a time and place, of which notice is required to be given by the county clerk, when and where they will meet to hear objections thereto. This meeting, unless otherwise ordered by the commissioners, is required to be held at the courthouse of the county in which the district, was organized. At this meeting the commissioners make and enter their order correcting or confirming the classification. Said sectionthen provides: ‘All orders made by the commissioners either of correction or confirmation shall be filed in said clerk's office within five days from the completion of the hearing, and any person appearing and urging objections who is not satisfied with the decision of the commissioners in confirming the classification of his lands may appeal therefrom, within ten (10) days after the order of the commissioners is filed in said court aforesaid by filing with the clerk of said court an appeal bond with good and...