Brown v. Van Keuren

• Decision Date: 20 June 1930
• Docket Number: No. 20063.,20063.
• Citation: 172 N.E. 1,340 Ill. 118
• Parties: BROWN v. VAN KEUREN et al.
• Court: Illinois Supreme Court

340 Ill. 118

172 N.E. 1

BROWN

v.VAN KEUREN et al.

No. 20063.

Supreme Court of Illinois.

June 20, 1930.

Certiorari proceeding by Samuel Brown against J. H. Van Keuren, an acting Judge of Cook County, and others, to review certain proceedings against petitioner and others for the support of grandchildren under the Paupers Act. Upon hearing, a judgment order was entered dismissing the petition and quashing the writ, and petitioner appeals.

Reversed and remanded, with directions.Appeal from Circuit Court, Cook County; Thomas Taylor, Jr., judge.

Gallagher, Shulman & Abrams, of Chicago, for appellant.

Ernest Kentwortz, of Chicago, for appellees.

HEARD, J.

Appellant, Samuel Brown, filed his petition in the circuit court of Cook county directed against appellees, J. H. E. Van Keuren, an acting judge of Cook county, Robert M. Sweitzer, clerk of the county court of Cook county, and others, for a writ of certiorari to review certain proceedings had in the county court of Cook county upon the petition of Robert E. Crowe, then state's attorney of Cook county, against appellant and others, for the support of certain grandchildren under the Paupers Act. The petition alleges that a hearing was had on the complaint in the county court without service upon appellant; that a judgment was entered against him ordering him to make weekly payments for the support of the grandchildren; that he prayed an appeal, which was allowed; that he was thereafter advised that no appeal would lie from the judgment, nor could the matter be taken up by writ of error; that his only remedy was by petition for writ of certiorari, and that the Paupers Act of March 23, 1874 (Smith-Hurd Rev. St. 1929, c. 107, §§ 1-36) was unconstitutional. Leave was given to file the petition, the writ of certiorari issued, return duly made, a hearing had in the circuit court, a judgment order entered therein finding that the appellant was not able to sustain the material allegations of the petition, dismissing the petition, and quashing the writ of certiorari theretofore issued. An appeal has been prayed to this court on the ground that the constitutionality of a statute is involved.

This is a purely statutory proceeding, jurisdiction of which is conferred upon the county court by the Paupers Act-an act which is complete in itself, and which does not provide for an appeal or other mode for reviewing the proceedings. The law is well settled in this state that the circuit courts may award the common-law writ of certiorari to all inferior tribunals and jurisdictions within the state where it appears that they have exceeded the limits of their jurisdiction or where they have proceeded illegally and no appeal is allowed or other mode provided by law for reviewing their proceedings. People v. Wilkinson, 13 Ill. 660. In Kinsloe v. Pogue, 213 Ill. 302, 72 N. E. 906, it was held that the circuit court may award the common-law writ of certiorari to the county court to review its proceedings in statutory proceedings where its decision is final and where the Legislature has failed to provide for a review of its decision.

The only office which the common-law writ of certiorari performs is to bring before the court the record of the proceedings of an inferior tribunal for an inspection by a superior tribunal. The superior tribunal, upon an inspection of the record, alone, when the writ is sufficient and the writ has been properly issued, determines whether the inferior tribunal had jurisdiction of the parties and of the subject-matter, and whether it has exceeded its jurisdiction or has otherwise proceeded in violation of law. Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N. E. 767;Cass v. Duncan, 260 Ill. 228, 103 N. E. 280;Highway Com'rs of Town of Sonora v. Supervisors of Carthage, 27 Ill. 140.

It is claimed by appellant that the county court did not have jurisdiction over his person, in that the summons issued in the cause was not served upon him, but was returned by the sheriff ‘not found.’ On the return day of the summons appellant was present in court with his attorney. He was called as a witness by the opposite party. This did not constitute an appearance in court on his part, and did not give the court jurisdiction over him. However, thereafter, during the trial, his attorney cross-examined witnesses upon questions going to the merits of the case, made motions in the case, and submitted propositions of law in an attempt to make a defense upon the merits. While a defendant may stand on all his legal rights and require all the forms of law to be pursued before he can be required to answer, in a case of which the court has general jurisdiction he may dispense with the process altogether, waive irregular process, and appear in the case. Mitchell v. Jacobs, 17 Ill. 235; Coleen v. Figgins, Breese, 19. Where a defendant is in court and attempts to make a defense which can only be sustained by an exercise of jurisdiction, the appearance is general, whether it is in terms limited to a special purpose or not. People v. Southern Gem Co., 332 Ill. 370, 163 N. E. 825;City of Rock Island v. Chippiannock...