Bowman v. the Venice
| Decision Date | 31 May 1882 |
| Citation | 102 Ill. 459,1882 WL 10251 |
| Parties | JOHN B. BOWMAN et al.v.THE VENICE AND CARONDELET RAILWAY COMPANY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the County Court of St. Clair county; the Hon. M. J. DALE, Judge, presiding.
On the 17th day of November, 1880, and during term time, the Venice and Carondelet Railway Company filed in the county court of St. Clair county a petition, under the Eminent Domain act, against John B. Bowman, Frank B. Bowman, and Joseph L. Griswold, for the assessment of damages and right of way over certain lands lying near East St. Louis, in which the defendants, respectively, appeared of record to have an interest. Service was had upon the Bowmans, but not upon Griswold. On demurrer to the petition it was amended, under leave of the court. Appellants then moved the court to quash or continue the proceeding, on the ground there was no service upon or appearance by Griswold, which the court refused to do, and appellants excepted. Appellants then demurred to the amended petition, but the court overruled the demurrer, and the cause was submitted to a jury for trial, resulting in a verdict fixing John B. Bowman's damages at $3062, and Frank B. Bowman's at $437.50. On motion of appellants, this verdict was set aside, and a new trial granted, and leave was given petitioner to amend the petition by making new parties. The bill of exceptions, however, shows that while the order allowing the amendment of the petition appears upon its face to have been made in term time, yet in point of fact the record was so made up in pursuance of leave granted by the judge in vacation.
On the 26th of January, 1881, in vacation, appellee filed an amended petition, making Phillip Hendrich also a party, and at the same time filed an affidavit showing that Griswold and Hendrich were non-residents, upon which petition the county judge indorsed an order directing publication to be made as to Griswold and Hendrich, which was accordingly done. At the March term, 1881, of the court, appellant John B. Bowman entered a motion to strike the amended petition of the 26th of January from the files, on the alleged ground that it had been filed without leave, and in violation of the rules of the court, which motion was overruled, and appellants excepted. John B. Bowman thereupon moved the court for a continuance of the cause, on the ground that his attorneys, by reason of being engaged in the circuit court then in session, were unable to be in attendance; also upon the further ground that the applicant had important business in the circuit court himself, which required his personal attention; which motion was overruled, and exceptions taken. Appellants then moved the court to dismiss the proceeding as to part of the premises, on the ground that Griswold and Hendrich were part owners and co-defendants, and not properly in court; which motion was also overruled, and an exception taken.
Hendrich entered a special appearance for the purposes of his motion, and moved the court to quash the writ and dismiss the proceeding as to him, on the ground that the amended petition making him a party was presented to a judge in vacation, and that the judge did not indorse thereon any time when he would hear the same, and for the reason that, as to him, such proceedings as he had received notice of were to be had before a judge in vacation, and not before the court. This motion was also overruled, and an exception taken. Hendrich then entered a motion challenging the array of jurors, on the ground they were drawn from the regular panel for the March term of the court, and not selected under sec. 6, chap. 47, Rev. Stat., this and the preceding motion being supported by affidavit. The challenge was disallowed, and Hendrich excepted. Cross-petitions were filed by the Bowmans, but no further defence was made by Hendrich, and none at all by Griswold.
The company answered the cross-petitions, denying all right to compensation on account of any supposed damages to the premises mentioned in cross-petitions, and the issues being thus made up, the cause was submitted to a jury, who reported, and awarded to John B. Bowman, as compensation for right of way, $875, and for damages to adjoining lands mentioned in cross-petition, $1200; to Frank B. Bowman and Phillip Hendrich, as compensation for right of way, $175, and nothing for damages to contiguous lands mentioned in cross-petition, and to Joseph L. Griswold, for right of way, $300. Motions for a new trial, and in arrest of judgment, were severally overruled, and exceptions taken, and thereupon the court entered several judgments against the company, in favor of the parties above mentioned, in the respective sums specified in the report and verdict of the jury, as first stated. John B. and Frank B. Bowman severally appealed to this court, and the two appeals seem, by common consent, to be treated by counsel as one case. Mr. JOHN B. BOWMAN, and Mr. FRANK B. BOWMAN, for the appellants.
Messrs. G. &. G. A. KŒRNER, for the appellees.
The points relied on for a reversal are arranged by appellants' counsel under two heads: 1. Such as relate to the compensation fixed by the jury. 2. Such as are supposed to affect the jurisdiction of the court. We will consider them in the order named.
Petitioner, for the purposes of the trial, admitted the title of a portion of the lands in question to be in John B. Bowman, and also that his grantors had a good title to another portion; and it is claimed by appellants the damages awarded by the jury are too small, and that the smallness of the allowance was occasioned by an instruction given by the court, which caused the jury to disregard this admission by petitioner relating to the title of Bowman and his grantors. The instruction complained of is as follows:
“Statements of counsel or parties, not made under oath, or made as admissions, are not evidence, and are not to be regarded as such by the jury in making up their verdict.”
It is claimed that this instruction in effect told the jury they must disregard the admission in question, because it was not made under oath. We do not think the instruction is obnoxious to the objection taken to it. The object of the instruction was to exclude from the consideration of the jury the mere statements of counsel or parties which were neither sworn to nor admitted in evidence. So far from the instruction excluding the petitioner's admission with respect to title, it is expressly excepted from its operation. Moreover, the verdict shows upon its face that the jury allowed some damages with respect to a portion of the lands embraced in the admission, which could not consistently have been done if the jury had understood the instruction, as is claimed they did. Whatever objections there may be to the instruction in question, we are very clear it could have worked appellants no injury upon the ground suggested.
The remaining points fall under the second head of appellants' argument, and directly question the jurisdiction of the court below. It will not be necessary to notice them in detail, as most of them rest substantially upon the same ground.
The position of appellants, as we understand them, is, that the proceeding in the present case is absolutely void, on the ground the court had no jurisdiction of the subject matter of the suit, or of the persons of Griswold and Hendrich; that so far as these two defendants are concerned the suit was commenced in vacation, to-wit: on the 26th of January, by filing the amended petition under which the case was finally tried; that the action having been commenced, as to them, in vacation, all subsequent proceedings in it could only be done in vacation; that the trial having taken place and judgment rendered in term time, the whole proceeding is void, but that, conceding the case might, notwithstanding it was commenced in vacation, have been afterwards lawfully heard and determined in term time, the notice by publication not being in conformity with the statute was insufficient to give the court jurisdiction of their persons; and that the proceedings being void as to a part of the defendants, are void as to all. This last proposition is based upon the legal hypothesis that in a condemnation proceeding under the Eminent Domain act, where the lands to be affected by it belong to two or more as tenants in common, the court has no power or jurisdiction to hear and determine the case as to one without having the others before it also.
No authority has been cited in support of this position, nor do we find any provision in the statute regulating the subject which in express terms sustains it, so that if the position is correct, it must rest upon the construction of the statute, or general principles applicable to a proceeding of this character. The second section of the Eminent Domain act requires the petitioner to set forth, among other things, a description of the property proposed to be taken, together with the names of all persons who appear of record to be interested therein, as owners or otherwise, “praying the compensation to be paid to the owner, to be assessed.” However many parties in interest, the amount each one is entitled to receive as compensation must be...
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