Comm'rs of Drainage Dist. No. 5 v. Arnold

• Decision Date: 21 September 1943
• Docket Number: No. 27097.,27097.
• Parties: COMMISSIONERS OF DRAINAGE DIST. NO. 5 v. ARNOLD.
• Court: Illinois Supreme Court

383 Ill. 498

50 N.E.2d 825

COMMISSIONERS OF DRAINAGE DIST. NO. 5

v.ARNOLD.

No. 27097.

Supreme Court of Illinois.

Sept. 21, 1943.

Action by the Commissioners of Drainage District No. 5 against William Arnold to have defendant's land annexed to and made a part of the drainage district. From an order of the circuit court denying defendant's motion to vacate the judgment entered dismissing defendant's appeal from an order of the county court, the defendant appeals.

Reversed and remanded, with directions.Appeal from Circuit Court, Will County; James V. Bartley, judge.

John H. Beckers, of Kankakee, and Edward R. Nadelhoffer, of Joliet, for appellant.

Krusemark & Krusemark, of Joliet, for appellees.

SMITH, Chief Justice.

This is an appeal from an order and judgment of the circuit court of Will county. Appellees, as drainage commissioners of Drainage District No. 5 of Monee, filed a petition in the county court of that county in which it was alleged that the drainage district was organized under the act of 1885, commonly known as the Farm Drainage Act (Ill.Rev.Stat. 1941, chap. 42, par. 82 et seq.), that the commissioners of the drainage district were of the opinion that there were certain lands lying outside the district which were benefited by the original work, and by work to be done, in said district; that there are ‘certain land owners outside of said Drainage District No. 5 of Monee, Will County, Illinois, who have connected their ditch, or ditches, or tile drains, upon their said lands, with the open ditch of said District, already made and constructed, as hereinbefore mentioned, and therefore, they should be deemed to have voluntarily applied to be included in said District, * * *.’

The land described in the original petition was the south half of the southeast quarter of section 22. This land was alleged to be owned by appellant, William Arnold. The petition further alleged, ‘That the aforesaid tract of land is drained by and through a tile drain existing upon the said land, there constructed by the said William Arnold, or his agents or servants, and connecting with another drain ultimately leading into the open ditch of said District.’

The prayer of the petition was that, upon a hearing, the court would find that the lands described in the petition should be deemed to have been benefited and will be benefited by the work done and to be done in said district; that the owners of said lands be deemed to have voluntarily applied to be included in said district, and that said lands be treated, classified and taxed like other lands within the district. An answer to the petition was filed. Thereafter the petitioner filed an attachment to the petition. The amendment added the north half of the southeast quarter of section 22 to the lands described in the petition. It was alleged in the amendment that this land was also owned by William Arnold; that ‘the aforesaid tract of land is drained by and through a tile line or lines constructed by the said William Arnold, his agents or servants, which said tile line runs in a Northeasterly direction, and empties into the South side of the public highway running East and West, thence through a culvert Northerly into a tile line located upon the land of Milton Harmening, being the Southeast Quarter, (S.E. 1/4) of Section Fifteen (15), which said tile line then runs in a Northeasterly direction, connecting with the ditch of said District.’

Upon a hearing the county court granted the prayer of the amended petition. It was ordered and adjudged that the lands were benefited by the work done in the district; that appellant was deemed to have voluntarily applied to have said lands included within the district, and they were ordered annexed to the district, to be treated, classified and taxed as other lands in the district.

Thereafter appellant presented an appeal bond to the county court. It was recited in the bond that an appeal from the judgment of the county court had been taken to the circuit court of Will county. The bond was approved by the court.

After the cause was filed in the circuit court, a motion was made by appellees to strike the appeal bond and dismiss the suit. The ground set out in this motion was the insufficiency of the appeal bond. Thereafter appellees filed a supplemental motion to strike the appeal bond and dismiss the suit. This supplemental motion also alleged the insufficiency of the appeal bond and the conditions thereof. If further alleged that section 42 of the Farm Drainage Act was unconstitutional and that no appeal would lie from the judgment of the county court to the circuit court.

The circuit court, upon a hearing of the motions found that that part of the amendment of 1919, to section 42 of the Farm Drainage Act, purporting to allow an appeal from the county court to the circuit court, was invalid, for the reason that it amended another statute without setting out the amended statute at length in the amendment, as required by section 13 of article IV of the constitution, Smith-Hurd Stats. That court entered an order dismissing the appeal. This order was entered on May 26, 1942. On June 18, 1942, appellant filed a motion to vacate and set aside the order of May 26, dismissing the appeal. It was alleged in this motion that the entire amendment of 1919 to section 42 of the Farm Drainage Act was unconstitutional and that the county court had no jurisdiction of the proceedings from which the appeal was taken. An order was entered on the same date, striking the cause from the docket, with leave to reinstate, on motion of either party. On December 15, 1942, on motion of appellant, the cause was reinstated. The motion of appellant to vacate the judgment entered on May 26, 1942, was heard and denied.

On December 16, 1942, appellant filed a notice of appeal. This notice of appeal is from the order of the court denying appellant's motion to vacate the judgment entered on May 26 dismissing the appeal.

Appellees have filed a motion in this court to dismiss the appeal on the ground that the notice of appeal was not filed within ninety days from May 26, 1942, the date on which the judgment of the circuit court, dismissing the appeal, was entered, and on the further ground that appellant filed no praecipe for the record on appeal, as required by rule 36(1). This motion was taken with the case.

Each party is, by the record in this case, placed in the anomalous position of both asserting and denying the validity of the 1919 amendment to section 42 of the Farm Drainage Act. Appellees, in an attempt to sustain the judgment of the circuit court, dismissing the appeal, challenge the validity of that portion of said amendment purporting to authorize an appeal from the judgment of the county court to the circuit court. In opposition to appellant's motion to vacate the judgment, appellees assert the validity of that portion of the 1919 amendment conferring jurisdiction on the county court.

On the other hand, appellant, in seeking to reverse the judgment of the circuit court, dismissing the appeal, avers that the 1919 amendment is valid and that such appeals are authorized. In support of his motion to vacate that judgment, however, he asserts that if the provisions of the 1919 amendment authorizing an appeal from the county court to the circuit court are invalid, this invalidates the entire amendment and the county court was wholly without jurisdiction.

It is true that the notice of appeal was only from the order of the court denying appellant's motion to vacate the judgment entered on May 26, 1942, dismissing the appeal. Nevertheless, the motion to vacate raised the constitutionality of the entire amendment of 1919 to section 42 of the Farm Drainage Act. It challenged the jurisdiction of the subject matter of both the circuit court and the county court. We are disposed to treat the notice of appeal as sufficient to present for review the validity of the 1919 amendment to section 42 of the Farm Drainage Act, and to properly present the questions raised, both under the judgment entered on May 26, 1942, and the order denying the motion to vacate that judgment. Section 76(2) of the Civil Practice Act provides that an appeal shall be deemed perfected when the notice of appeal is filed and that no other step shall be jurisdictional. Ill.Rev.Stat. 1941, chap. 110, par. 200. The failure to file a praecipe for the record is not grounds for dismissing the appeal. The motion to dismiss the appeal will, therefore, be denied.

Prior to the 1919 amendment, section 42 of the Farm Drainage Act read as follows: ‘Nothing in this act shall be construed to forbid land owners within the district to more completely drain their lands by using the common drains as outlets to lateral drains; and the owners of land outside the drainage districts or another drainage district may connect with the ditches of the district already made, by the payment of such amount as they would have been assessed if originally included in the district, or if such connection shall, by increase of water, require an enlargement of the district ditches, then the outside owners of land so connecting or other drainage district, as may be, shall pay the costs of such enlargement. If individual land owners outside the district shall so connect, they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by such drainage, shall be treated, classified and taxed like other lands within the district. Drainage commissioners may at any time enlarge the boundaries of their districts by attaching new areas of land which are involved in the same system of drainage and require for outlets the drains of the district made or proposed to be made, as the case may be, upon petition of as great a proportion of the land owners of the area to the added as is required for an original district. All changes thus made in the district shall be duly noted and shown upon the map,...