Dep't of Pub. Works & Bldgs. v. Legg

• Decision Date: 11 October 1940
• Docket Number: No. 25570.,25570.
• Citation: 29 N.E.2d 515,374 Ill. 306
• Parties: DEPARTMENT OF PUBLIC WORKS AND BUILDINGS v. LEGG et al.
• Court: Illinois Supreme Court

374 Ill. 306

29 N.E.2d 515

DEPARTMENT OF PUBLIC WORKS AND BUILDINGS

v.LEGG et al.

No. 25570.

Supreme Court of Illinois.

Oct. 11, 1940.

Condemnation proceeding by the Department of Public Works and Buildings against Don Legg and others. From a judgment awarding Don Legg and others $420 for land taken and $820 for damages to land not taken, and from a prior order vacating an order dismissing the petition for condemnation, Don Legg and others appeal.

Affirmed.Appeal from Montgomery County Court; Robert C. White, Judge.

Dennis J. Godfrey, of Litchfield, for appellants.

John E. Cassidy, Atty. Gen., George Hall, State's Atty., of Hillsboro, and T. J. Sullivan, of Springfield, for appellee.

JONES, Chief Justice.

This is an appeal from a condemnation judgment of the county court of Montgomery county awarding appellants $420 for land taken and $820 for damages to land not taken, and from a prior order vacating an order dismissing the petition for condemnation.

Appellant, Donn Legg, owns 57.78 acres of land adjacent to the west side of the city of Litchfield. Appellee filed a condemnation suit for a right-of-way 80 feet wide across the land as a part of Federal Aid Route No. 38 between Litchfield and Gillespie. The project between those two cities calls for a gravel-surfaced road, running diagonally across the Legg land from northeast to southwest, taking 3.99 acres. About twenty-two acres are south of the road and the remainder of the tract lies north of it.

In 1937, a tentative route over existing highways, known as the ‘South road’ between Litchfield and Gillespie, was laid out by a local committee and approved by appellee. The local committee secured all necessary right-of-way. The route was rejected by the Federal Department of Agriculture because it crossed the ‘Big Four’ railroad twice, and also the Chicago and Northwestern Railroad. The route described in the petition, known as the ‘North road’, crosses only the Chicago and Northwestern road, eliminating two grade crossings, and was approved by the Federal Department of Agriculture. That part of the ‘North road’ in controversy lies about one-half mile north of the ‘South road.’ The ‘South road’ is a State Aid road. The county did some grading and put in a few culverts, all of which work is available for the existing road. The ‘North road,’ as first surveyed, ran along the south side of the Legg tract. It was changed so as to take about two acres off the south edge, and finally located as described in the petition.

Appellants filed a motion to dismiss the petition, based largely upon the claim that the ‘South road’ had been approved by appellee and was the better route in several particulars. It is urged that it intersects existing roads not touched by the ‘North road;’ that it furnishes easier access to the Litchfield hospital by coal miners; and that the city built a hard road to connect with the ‘South road.’ A hearing on the motion was had and the petition was dismissed. Shortly thereafter, the term of the presiding judge expired and his successor took office. Within thirty days from the entry of the order of dismissal, appellee filed a motion to vacate it, reciting, among other grounds, the elimination of grade crossings, and charging usurpation of the powers of appellee and the Department of Agriculture. The motion was granted by the successor judge. The cause proceeded to a trial and the condemnation judgment was entered upon the verdict of a jury.

Appellants claim that in the absence of statutory authority a succeeding judge cannot vacate a final order of his predecessor, and that there is no such statute in this State. The character of the dismissal order as final is not controverted. All courts of record have inherent power to vacate or set aside their judgments or orders during the term at which rendered. This power exists independently of any statute and has its foundation in the common law. 15 R.C.L., Judgments, sec. 140. Before the adoption of the Civil Practice Act in this State, we frequently held that courts have jurisdiction over their final judgments and orders of a pending term, and during the term could set them aside. Unbehahn v. Fader, 319 Ill. 250, 149 N.E. 773;People v. Chicago, Paducah & Memphis Railroad Co. 301 Ill. 135, 133 N.E. 710. Section 50(7) of the Civil Practice Act, Ill.Rev.Stat.1939, chap. 110, par. 174(7), provides for vacating any judgment or decree within thirty days after rendition upon good cause shown by affidavit. Section 2 of the act relating to vacating judgments, decrees or orders, Ill.Rev.Stat.1939, chap. 77, par. 83, provides for like vacation of any final judgment, decree or order upon motion. These acts substitute a period of thirty days in place of the term of court. Neither of them makes any distinction as to whether the vacating judgment is rendered by the same judge who entered the original judgment or by his successor. Judges of a court exercise the power vested in the courts as such and not in them as officers. That is to say, jurisdiction is vested in the courts, not in the judges. The authority and power of a judge are incident to and grow out of the power of the court itself. The court continues although the term of the judge has terminated, and where he is succeeded by another, the court retains its identity. It is the same court. Any application that can be made to the court may always be made to the court however it is constituted. 33 Corpus Juris, Judges 961. Thus, until the expiration of thirty days after the original order was entered, the court had jurisdiction to entertain an application to vacate it, whether the same judge or his successor was presiding. Otherwise, the statute would be nullified by a mere change of personnel of the court and litigants deprived of substantial rights.

In Village of Hinsdale v. Shannon, 182 Ill. 312, 55 N.E. 327, we recognized the right of a successor judge to pass upon a motion for a new trial and sign the bill of exceptions. In Fort Dearborn Lodge v. Klein, 115 Ill. 177, 3 N.E. 272, 273, 56 Am.St.Rep. 133, we held that where a succeeding judge was satisfied that an erroneous ruling as to the sufficiency of a plea was made by his predecessor he should have set the order aside. We said in that case: ‘The fact that the order was made by another judge is a matter of no consequence whatever. The power of the trial judge was precisely the same as if he had made the ruling himself. The ruling in either case would be the act of the court.’ While the order in that case was not a final order, the principle involved is the same. We have never held that a final order may not be set aside by a succeeding judge when application is duly made in the manner provided by the statutes mentioned. Those statutes expressly include final orders. In the light of their provisions and the fact that it was the court, not the judge, which had...