O'Hare v. Chicago, M.&N.R. Co.

• Decision Date: 31 October 1891
• Court: Illinois Supreme Court
• Parties: O'HARE v. CHICAGO, M. & N. R. Co.

139 Ill. 151

28 N.E. 923

O'HARE

v.CHICAGO, M. & N. R. Co.¹

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from Cook county court; RICHARD PRENDERGAST, Judge.

Petition for the condemnation of land for railroad purposes. Mary O'Hare, one of the owners of the land to be taken, appeals. Affirmed

McArdle & Wheelock, for appellant.

E. H. Gary, for appellee.

SHOPE, J.

Appellee filed its petition in the county court of Cook county, August 14, 1889, alleging that it is a corporation organized under the laws of Illinois, and has power to construct and operate, etc., a railroad in Illinois, and to take and appropriate lands for right of way, etc., and has located its line of railroad over certain lots, describing them; that Mary O'Hare and Edward O'Hare are the owners thereof; that certain persons named are in possession as tenants; that it has been unable to agree with said owners and occupants as to the compensation to be paid; and prays that just compensation be ascertained conformable to law, etc. April 3, 1890, appearance of Mary O'Hare was duly entered, and the case set for hearing April 16, 1890.

On the last-named day, appellant, by her counsel, objected to E. H. Gary, who appeared as attorney for the petitioning company, being permitted to practice as an attorney in the county court of Cook county, or to act as attorney in said cause in said court, for the reason that he was then judge of the county court of Dupage county, and in the habit of presiding in the court in which this cause was depending. Appellant offered to produce the record of Cook county court, showing that Judge Gary had presided in that court, which was waived. A colloquy ensued between court and counsel, from which it appears that Judge Gary had a law-office in Chicago, and was in regular practice there, and had, at the request of the county judge of Cook county, presided in that court in the trial of particular cases; that there was no arrangement for the trial of cases by him in the future; that, when requested in the past to try particular cases, he would consent or refuse as his business occupations would permit. The court overruled the motion. It is insisted that the attorney fell within the prohibition of section 10, c. 13, Rev. St., which is as follows: ‘No person who holds a commission as a justice of the supreme court, or as judge of any court of record, shall be permitted to practice as an attorney and counselor at law in the court in which he presides.’ Any county judge in the state, in case of absence, death, resignation, or inability of the judge of the county court in any county, may hold the same, and perform all the duties of the judge thereof, during such absence, vacancy, or disability. Act 1885, (3 Starr & C. St. p. 152.) So, also, county judges may interchange with each other as circuit judges may do, and ‘hold court for each other, and perform each other's duties, when they find it necessary or convenient.’ Act 1879, (1 Starr & C. St. p. 731.) While a judge was so presiding, he would manifestly be inhibited from practicing as an attorney therein. The practice is one not to be commended, because of the tendency to bring the administration of the law into disrepute and contempt; yet we think the mere fact that at some time in the past-how remote does not appear-the judge had presided in particular cases will not necessarily disqualify him to appear in the court as an attorney. There is no pretense that he had or would preside at that term of court. At the term in question he had no control of the records of the court, no juror or officer was subject to his control or influence, so far as appears from this record, nor were any facts set up in support of the motion, showing, or tending to show, that by reason of his having presided in the court appellant would be prejudiced if he was permitted to appear as attorney for appellee. We are of the opinion that, under the facts shown, the attorney here sought to be excluded did not fall within the statutory inhibition.

It is next urged that the court erred in permitting counsel for appellee, over the objection of appellant, to ask of the jurors, upon their voir dire, if they knew Mr. Alexander Sullivan. Upon objection being made, and counsel for appellee insisting that he was advised Mr. Sullivan was interested, the court, counsel, plaintiff, and representatives of appellee retired out of the hearing of the jury, and the court heard evidence touching Mr. Sullivan's connection with the case, and as to the propriety of the question. It will be unnecessary to detail what there occurred. The result was that the court overruled the objection, and permitted the question to be asked of each juror, over the objection of appellant. The only proper purpose of the question was to enable counsel to determine whether he desired to exercise a peremptory challenge. It was assumed by counsel, upon alleged information, that Sullivan was directly or indirectly interested as attorney in the case; and it is not perceived why the court, in the exercise of a sound discretion, might not permit the inquiry for the purpose indicated. It cannot be presumed, in the absence of any fact going to the jury showing, or tending to show, Mr. Sullivan's connection with the case, or some improper act of his in connection therewith, or from the fact of his connection with the case, that prejudice would be created in the minds of the jurors. If appellant feared such result, it would have been entirely competent for her to have asked an instruction, and it would have been the duty of the court to have given it, repelling any presumption prejudicial to her or her cause that might arise because of the question.

It is next urged that the evidence fails to sustain the verdict; that it is too small. The evidence bearing upon the value was conflicting, ranging from $7,631 to $15,000. The verdict was for $9,251, and it is clear that there is ample evidence upon which to predicate the finding. The witnesses severally testified to their experience and means of knowledge. The jury saw them, and had opportunity to judge of their intelligence and fairness, which we do not possess. Besides, the jury inspected the premises, and had the advantage of a personal view and observation, which they were authorized to consider in connection with the evidence heard. We are not, therefore, justified in interfering upon this ground.

It is next urged that the court erred in excluding a deed offered in evidence by appellant for the purpose of showing a sale of property in the locality of the premises sought to be condemned. The instrument offered purported to be a deed from one Gahan to Jefferys conveying lots 1 and 2 in Murray's subdivision of part of the S. fraction of the N. W. 1/4 section 28, township 39 N., range 14 E., of the third P. M. The property in dispute was lot 6, Healy's subdivision of lot 7, block 1, Canal Trustees' subdivision of section 29, in the same township and range. No evidence was offered showing, or tending to show, that the sale was voluntary or in good faith, or whether the premises were improved or not, or, it improved, the nature and character of the improvements. Evidence of voluntary sales of other lands in the vicinity, and similarly situated, as affecting their value, is admissible in evidence to aid in estimating the value of the tract to be condemned. Railroad Co. v. Haller, 82 Ill. 211;Railroad Co. v. Maroney, 95 Ill. 182. But it is incumbent on the party offering such proof to show that the lands so sold were similar in locality and character to the lands in question. King v. Railroad Co., 34 Iowa, 458;Cummins v. Railroad Co., 63 Iowa, 397, 19 N. W. Rep. 268. While the jury may, under the statute, inspect the property sought to be taken for the designated public use, there is no warrant for their viewing other property mentioned in the evidence of the witnesses. It is manifest, therefore, that, to render the evidence competent, it should be accompanied by evidence or offer of evidence that will convey to the jury some intelligent idea of the relative value of the properties. If they are not similar in character, in location, and improvements, and no basis is furnished by which a comparison may be made, the evidence could not aid in fixing the value of the particular property. Moreover, the only purpose of introducing this deed was to prove the price of the lots therein mentioned, as tending to establish the value of the lot in controversy; and this was to be done solely by the consideration expressed in the deed. The recital of the consideration in the deed would, as between the parties to the deed, be admissible...