Drummer Creek Drainage Dist. v. Roth

Decision Date16 February 1910
Citation91 N.E. 63,244 Ill. 68
PartiesDRUMMER CREEK DRAINAGE DIST. et al. v. ROTH et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Ford County Court; H. H. Kerr, Judge.

Proceedings by the Drummer Creek Drainage District and others against D. K. Roth and others. Decree establishing the district, and defendants bring error. Reversed and remanded.

A. L. Phillips and Cloud & Thompson, for plaintiffs in error.

Ray & Dobbins and L. A. Cranston, for defendants in error.

CARTER, J.

This was a proceeding in the county court of Ford county for the organization of a drainage district under the socalled Levee Act.’ The petition was directed to the December term, 1907, of said court. The proposed district included most, if not all, of the property in Gibson City and certain farm property lying southerly and westerly from said city. Under section 2 of said act (Hurd's Rev. St. 1908, p. 817, c. 42) the petition must be signed by a majority of the owners of lands within the proposed district who have arrived at lawful age, and who represent one-third in area of the land, or by one-third of the owners of lawful age who represent a major portion of the land in area. It was intended by this petition to secure one-third of the owners and a majority of the area. After the original petition had been filed, an amended petition was filed by leave of court, which added to the proposed district certainland not included, and left out other land included in said original petition. The original petition was signed by certain of the property owners, but the amended petition does not appear to have been signed, either by counsel or by any property owners. After the amended petition was filed a hearing was had in the county court on the organization of the district, and an order entered establishing the district.

The first contention of plaintiffs in error is that the district was not legally organized, in that the court had no authority to allow an amended petition to be filed without having such amended petition signed by as large a number of landowners, representing as great an amount of land, as is required for an original petition. It is insisted by defendants in error that the questions raised on this record must be decided in accordance with the amendments to the levee act approved and in force as an emergency law on May 29, 1909. Laws 1909, p. 182.

Two of the plaintiffs in error here prayed an appeal from the order organizing the district to this court. That case was decided at the April term, 1909, of this court, and the appeal was dismissed as having been prematurely taken, under the statute then in force. Damon v. Barker, 239 Ill. 637, 88 N. E. 278. That decision held that the order organizing the district, under the then existing statute, was interlocutory and not final. Shortly thereafter the amendment heretofore referred to went into force. Section 16 of the amended act provides, among other things, that the order organizing the district ‘shall be final, and separate or joint appeals and writs of error may be taken to the Supreme Court by the parties affected thereby,’ etc. The writ of error in this case was sued out of this court after this amendment went into force. We are disposed to hold that the amendment so far as it affected the procedure by appeal or writ of error, superseded the old law where the appeal had not been perfected or the writ of error sued out previous to the time the said amendment went into effect. Chicago & Western Indiana Railroad Co. v. Guthrie, 192 Ill. 579, 61 N. E. 658, and cases there cited. This being so, it is argued by counsel for defendants in error that said section 16, as amended, makes the organization order final, and this writ of error brings up only one final order in these proceedings, and that the last one entered herein, and not the order organizing the district.

It appears that since the appeal from the organization of the district was heard by this court in Damon v. Barker, supra, and dismissed, the commissioners, acting for the drainage district, filed their petition under the eminent domain law, and condemned a strip of land across the lands of a number of the plaintiffs in error for the main ditch of the district, and afterwards filed an assessment roll and corrected assessment roll against the tracts of land through which the main ditch was to pass, and that an order was entered confirming the said assessment roll as to all the property assessed. It further appears that this writ of error has brought up the record, not only of the special assessment and condemnation proceedings, but the judgment order and proceedings as to the organization of the district. Counsel for the defendants in error contend that the same rule should apply to writs of error bringing up records of final judgments or decrees as applies to appeals. We are disposed to hold otherwise. An appeal is purely a statutory right, and must be exercised in accordance with the statute. Anderson v. Steger, 173 Ill. 112, 50 N. E. 665. A decree which finally fixes the rights of the parties must be appealed from within the time allowed by statute, and is not subject to review by an appeal from a later decree not involving such rights. Gray v. Ames, 220 Ill. 251, 77 N. E. 219;De Grasse v. Gossard Co., 236 Ill. 73, 86 N. E. 176. Writs of error on this point are distinguishable from appeals. We do not find that there is any limitation in the levee act fixing the time within which a writ of error must be sued out from a final order under section 16 of that act. We think it necessarily follows that the general limitation of the practice act (Hurd's Rev. St. 1908, c. 110, § 117, p. 1637) controls in this regard, and that a writ of error can be sued out at any time within three years to review any final order organizing a drainage district under said section 16. A writ of error can also be sued out under section 17b of said amendatory act to review the final order fixing ‘benefits and damages.’ ‘A writ of error to a final judgment brings up the whole record.’ 7 Ency. of Pl. & Pr. p. 899, and cases cited. It has been held that a writ of error by one party brings up the entire record, and if any error exists to the prejudice of any party, it may be corrected, whether it be in the judgment to which the writ of error was taken or in another in the same case. Morgan v. Ohio River Railroad Co., 39 W. Va. 17, 19 S. E. 588. While this court has held that in partition proceedings the decree which finally adjudicated the rights and interests of the parties could not be reviewed on appeal from a later decree in the same proceeding which did not affect such interests of the parties (Crowe v. Kennedy, 224 Ill. 526, 79 N. E. 626;Piper v. Piper, 231 Ill. 75, 83 N. E. 100), we have also permitted, in partition proceedings, the original decree fixing the rights of the parties and a later decree taxing costs against certain of the parties to be reviewed by one writ of error (Smith v. Roath, 238 Ill. 247, 87 N. E. 414,128 Am. St. Rep. 123). All the final orders complained of in these proceedings have properly been brought to this court by this one writ of error. To review them by one writ of error tends to prevent multiplicity of suits and simplifies litigation. Such a practice is in harmony with the authorities and supported by sound reason.

It is further insisted that only Barker and Phillips, among the plaintiffs in error, are in a position to raise an objection as to the organization of the district. It appears...

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31 cases
  • King v. North Fork Outlet Drainage Dist.
    • United States
    • Illinois Supreme Court
    • June 23, 1928
    ...since nothing is to be presumed to be within the jurisdiction. Payson v. People, 175 Ill. 267, 51 N. E. 588;Drummer Creek Drainage District v. Roth, 244 Ill. 68, 91 N. E. 63;Aldridge v. Clear Creek Drainage District, 253 Ill. 251, 97 N. E. 385;Maulding v. Skillet Fork Drainage District, 313......
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    ...its action in any particular. Aldridge v. Clear Creek Drainage and Levee District, 253 Ill. 251, 97 N.E. 385; Drummer Creek Drainage District v. Roth, 244 Ill. 68, 91 N.E. 63; Payson v. People (ex rel. Parsons), 175 Ill. 267, 51 N.E. 588. The General Assembly having authorized the creation ......
  • Bride v. Stormer
    • United States
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    • June 8, 1938
    ...later decree was rendered, could be made use of to review the entire record, including the earlier decree. Drummer Creek Drainage District v. Roth, 244 Ill. 68, 72, 91 N.E. 63, 64. In that case we held: ‘While this court has held that in partition proceedings the decree which finally adjudi......
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    ...and writ of error.’ Under the former Practice Act the entire record was subject to review on writ of error. Drummer Creek Drain. Dist. v. Roth, 244 Ill. 68, 72, 91 N.E. 63. In Bride v. Stormer, 368 Ill. 524, 15 N.E.2d 282, the right of plaintiff to appeal from an order dismissing a complain......
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