Gilkerson v. Scott

• Decision Date: 31 January 1875
• Citation: Gilkerson v. Scott, 76 Ill. 509, 1875 WL 8235 (Ill. 1875)
• Parties: WILLIAM B. GILKERSONv.HARRIET B. SCOTT.
• Court: Illinois Supreme Court

76 Ill. 509

1875 WL 8235 (Ill.)

WILLIAM B. GILKERSON

v.HARRIET B. SCOTT.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Ford county; the Hon. OLIVER L. DAVIS, Judge, presiding.

This was a petition by William B. Gilkerson, filed before a justice of the peace, for a drain over the lands of the petitioner and Harriet B. Scott, the defendant. After the report of the commissioners of highways, and the confirmation of the assessment of the jury, the defendant appealed to the county court. The county court, on motion, dismissed the proceeding, and the petitioner appealed from this order to the circuit court. The circuit court refused to refer the matter back to the commissioners of highways or try the cause de novo, but tried the cause on the record, and found for the defendant, and the petitioner appealed to this court. The main facts appear in the opinion.

Mr. CALVIN H. FREW, and Mr. M. H. CLOUD, for the appellant.

Messrs. POLLOCK & SAMPLE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a proceeding commenced by petition before a justice of the peace of Ford county, on the 31st day of September, 1873, for the construction of a drain, under the Drainage act of 1871, Laws 1871-72, p. 356. On the hearing of the petition and finding in its favor, the justice of the peace directed the commissioners of highways of the proper town to lay out and construct the drain. The commissioners proceeded in the performance of their duties and made their report, finding that the proposed work could be done at a cost and expense less than the benefits to the lands to be affected. The report was confirmed and a jury impanneled for the assessment of damages and benefits, who made their report finding benefits to appellant's, the petitioner's, land, $40; damages, nothing; amount of ditch theretofore made on his land, $2.50. Benefits to appellee's land, $150; damages, nothing; amount of ditch theretofore made on her land, worth to the owner $15, allowing and estimating the cost of making the rest of the drain to be $15, and the probable costs of the court proceedings, to be paid by her, $135.

Upon the subsequent meeting of the jury, before the justice, for the correction of their assessment, on the 4th day of March, 1874, they amended and confirmed their assessment of damages and benefits and costs, finding the balance of benefits to the land of appellant to be $37.50, and the balance of benefits to appellee's land to be $135, which the justice charged to be a tax on her land. The total costs were $121.15.

On the 7th day of March, 1874, defendant, Scott, appellee here, took an appeal to the county court. At the July term, 1874, of the county court, the court, on motion of the defendant, Scott, dismissed the cause, and the petitioner, Gilkerson, appealed to the circuit court of Ford county. At the August term, 1874, of the circuit court, the court heard the cause and found and rendered judgment in favor of the defendant, whereupon the petitioner, Gilkerson, appealed to this court.

It is assigned for error that the circuit court refused to try the cause de novo.

Section 26 of the Drainage act provides that, after the assessment roll of the jury has been corrected by the county court, if necessary, the court shall confirm the same and cause it to be spread upon the records, from which an appeal or writ of error will lie; a different section providing that appeals may be taken from the final judgment of the justice of the peace to the county court in the same manner as appeals may be taken from the findings of the jury in cases commenced in the county court.

We are of opinion that section 26 does not contemplate a trial de novo on appeal. The appeal is given in conjunction with a writ of error. Trials de novo are not had on writs of error. On the appeal to the county court a trial de novo might be had in that court, as in other cases of appeal from justices of the peace; but not so, we think, in the circuit court, on appeal to that court from the decision of the county court.

The provision of the present County Court act, Rev. Stat. 1874, p. 344, sec. 187, giving appeals merely, from the county court to the circuit court, and that upon appeal the case shall be tried de novo, does not govern, we think, as that act did not take effect until July 1, 1874, and the appeal to the circuit court was taken previously...