Gillette v. Aurora Ry. Co.
| Decision Date | 08 October 1907 |
| Citation | 228 Ill. 261,81 N.E. 1005 |
| Parties | GILLETTE et al. v. AURORA RY. CO. GREENE v. SAME. RUSSELL v. SAME. BENNETT v. SAME. ELDER v. SAME. DUNNING v. SAME. BELL v. SAME. EVENS v. SAME. SAFFORD v. SAME. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from City Court of Aurora; John L. Healy, Judge.
Condemnation proceedings by the Aurora Railway Company against William E. Gillette and others. From the judgment, defendants appeal separately. Reversed, except as to appeal of M. V. Bennett.
Newman, Northrup, Levinson & Becker and Chester E. Cleveland, for appellant Greene.
Hopkins, Peffers & Hopkins, Carnes, Faissler & Cochran, Reid & Quackenbush, and Sears & Smith, for other appellants.
Fred A. Dolph, Charles C. Buell, Charles P. Abbey, John M. Roymond, John K. Newhall, and Theodore Worcester, for appellee.
From the judgment of the city court of the city of Aurora, entered upon a verdict in a proceeding to condemn the right of way for appellee's railroad in Galena street, in said city, where appellants, as abutting owners, owned the fee, and which fixed the compensation to be paid at one cent per lineal foot, separate appeals to this court were taken by the owners of nine different tracts, and the appeals have been consolidated.
On the return day of the summons the appellants, Edward B. Greene, Rebert S. Safford, Fannie V. Cheney, Fred Safford, Henry Cheney, Ernest Russell, Marshall Dunning, and William E. Gillette, presented their petitions for a change of venue on the ground of the prejudice of the judge against them, respectively. Notices had been given, and the applications were made, at the proper time. The petitions were in proper form, and complied with the statute regulating changes of venue, and were duly verified. Each petition alleged the prejudice of the judge, and that the change of venue prayed for could be granted without prejudice to appellee, or any other defendant or defendants. The judge overruled the motions, and each of the parties making the same excepted. The view expressed by the judge was that a motion for a change of venue could not be entertained until there had first been what he termed a ‘severance.’ The judge, perhaps, referred to the provision of the statute that the compensation for tracts included in one petition shall be assessed separately by the same or different juries, as the court or judge may direct; but that provision only relates to the case as it stands for trial in the court. The granting of a change of venue to the owners of some of the tracts is provided for by section 9 of the act relating to changes of venue (Starr & C. Ann. St. 1896, c. 146, par. 9), and a change is to be allowed on the petition of the owners of any parcel, if it can be done without prejudice to the other defendants or the petitioner. A change of venue would itself operate as a severance, and there is nothing whatever in this case from which prejudice to any other property owner could possibly arise. It was never intended that the judge must first direct separate trials in his own court before a change of venue, which must be applied for at the earliest opportunity, can be entertained or granted. Counsel for appellee say that to have granted the change would have been without benefit to any party; but we do not see how that position can be maintained, if the change would have secured an unprejudiced judge. In the case of Eddleman v. Union County Traction & Power Co., 217 Ill. 409, 75 N. E. 510, it was fully recognized that under the proviso of section 9 it is not necessary that all the defendants should join, and it was held that a change of venue was properly denied, because Dora E. Eddleman, one of the petitioners, did not swear to the petition.
It is also urged that this error in denying a change of venue was waived by the defendants going to trial without protesting, and counsel cite the case of Du Quoin Waterworks Co. v. Parks, 207 Ill. 46, 69 N. E. 587, as supporting that claim. That case and other like cases have no relevancy to this question. There a change of venue had been granted, and the venue changed to another judge. Two years afterwards the judge who had been disqualified heard the cause, and the defendants failed to call his attention to the disqualification. In such cases it has been considered that a judge might overlook or not recall the fact, and it is the duty of a party affected by the disqualification to call attention to it. In this case the court overruled the motions and ordered the parties to proceed at once with the trial, and they excepted. The court denied the motions under an erroneous view of the law, and as the denial was prejudicial error, it is ground for a reversal as to the appellants who applied for a change of venue.
Appellants, with the exception of M. V. Bennett, then filed separate motions in writing to dismiss the petition, for reasons therein stated. It was agreed that the hearing upon the motion of Edward B. Greene should be postponed until after verdict, and be then heard the same as if it were heard before the jury were impaneled. After the jury trial that motion was taken up for consideration pursuant to said agreement, and appellee offered in evidence its articles of incorporation, the ordinance of the city of Aurora granting it a license to occupy the street, and other evidence. Greene then attempted to attack the validity of the ordinance, and the court held that he could not do that. Greene excepted to the ruling, and the record shows nothing further respecting the motions. The court never ruled on the motion of Greene, and as to that motion there was neither decision nor exception, and there is nothing to be considered.
The other motions to dismiss the petition were heard as a preliminary question before the impaneling of a jury, and they were denied. The denial of the motions is assigned as error, but counsel for appellee contend that the question was not properly saved in the record by an exception to the ruling. It is true that the question was not saved by the motions for new trials or in arrest of judgment and exceptions thereto. Guyer v. Davenport, Rock Island & Northwestern Railway Co., 196 Ill. 370, 63 N. E. 732;Cella v. Chicago & Western Indiana Railroad Co., 217 Ill. 326, 75 N. E. 373. The record shows that, when counsel for appellants stated that they would enter motions to dismiss, the clerk asked if he should file the motions, and the court said: ‘Yes; the motion will be overruled.’ That was before the motions had been heard, or the court had been advised of the grounds on which they were made, and no exception was taken. Appellee, however, then proceeded to offer evidence in support of their motions. After hearing parties moving to dismiss offered evidence in support of their motions. After hearing much evidence the court overruled the motions, and each of the appellants making motions excepted. The ground of the claim that the question whether appellee had a right to condemn the property was not saved is that the judge, in his remarks in overruling the motions, said that the validity of the charter and ordinance were not involved, and treated the motions as motions to dismiss on account of a failure to attempt to agree with the owners. It is somewhat difficult to determine what the court had in mind at the time, since, following the statement, the court proceeded to discuss the question of the sufficiency of the articles of incorporation as to the feature concerning which they were attacked, and thought them sufficient, but held that the question could only be raised by quo warranto. The statement of the court was, in substance, that the only question involved was the attempt to agree, because the other questions could not be raised, and it is quite clear that the parties making the motions did not concur in that view. The assognment of error is based on proper exceptions.
As to the motion to dismiss the petition, the right of appellee to exercise the power of eminent domain and to take for its use the property described in the petition was disputed on various grounds. The right to construct and operate its railroad longitudinally on Galena stret was disputed, and it was insisted that its articles of incorporation were not sufficient, that the description of the termini of the road did not comply with the law, and that, while it was incorporated as a commercial railroad, it was attempting to construct a system of street railways in the city of Aurora. On the hearing of the motions much evidence which was wholly immaterial was introduced by appellee, intended to show the motives actuating appellants in defending the condemnation proceeding and questioning its right to condemn their property. That evidence need not be noticed, and the sufficiency of the evidence on the to show an attempt to agree with the owners is not now questioned. The evidence on the material question consisted of the articles of incorporation of the appellee, which omitting the statements of the names and residences of persons forming the corporation, the names of the board of directors, and the signatures, are as follows: Also the ordinance of the city of Aurora permitting the construction and operation of the railroad...
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