Hamilton v. Commissioners of Highways of Lovejoy Tp.

• Decision Date: 16 June 1903
• Citation: 203 Ill. 269,67 N.E. 792
• Parties: HAMILTON et al. v. COMMISSIONERS OF HIGHWAYS OF LOVEJOY TP. et al.
• Court: Illinois Supreme Court

203 Ill. 269

67 N.E. 792

HAMILTON et al.

v.COMMISSIONERS OF HIGHWAYS OF LOVEJOY TP. et al.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Circuit Court, Iroquois County; R. W. Hilscher, Judge.

Petition by John L. Hamilton and others against the commissioners of highways of Lovejoy township, Iroquois county, and another, for a writ of certiorari. Petition dismissed, and the petitioners appeal. Reversed.Dyer & Wallbridge, for appellants.

Crangle & Vennum (Robert Doyle, of counsel), for appellees.

WILKIN, J.

This is an appeal from a judgment of the circuit court of Iroquois county dismissing the petition of appellants, filed in that court, for a common-law writ of certiorari. The writ was sought for the purpose of reviewing and having declared void the proceedings of the commissioners of highways and a justice of the peace of the township of Lovejoy, in that county, altering and laying out a public road across a portion of section 11, township 24, range 12 west, which appellants own in fee, as tenants in common.

Several alleged irregularities in the proceedings are pointed out in the petition because of which it is insisted the highway commissioners and justice of the peace failed to acquire jurisdiction of the case, and therefore their acts and doings are void. It is, among other objections to the record, urged that the justice of the peace before whom the damages were assessed had no legal authority to proceed with the trial, which occurred on the 16th of April, 1902, for the reason that the statute requires him to continue the hearing for a period not exceeding 12 days, where service is made upon any one of the owners by posting notices. The record discloses that on April 3d of that year the justice of the peace issued a summons for appellants, commanding them to appear before him on the 16th day of April following, at 1 o'clock p. m., to prove the damages sustained by them on account of the alteration of the road. The return of the constable to whom the summonses were issued, made April 8th, shows that five of the appellants were nonresidents of the county and could not be served with summons. The statute provides (Hurd's Rev. St. 1899, c. 121, § 43) that, in case it shall appear from the return of any officer to whom the notice may be delivered for service that there are nonresident owners who cannot be found and served within the county, such justice of the peace shall cause a notice to be delivered to the occupant of the...