Haslam v. the Galena

• Decision Date: 30 September 1872
• Citation: 1872 WL 8327,64 Ill. 353
• Parties: JAMES HASLAM et al.v.THE GALENA AND SOUTHERN WISCONSIN R. R. CO.
• Court: Illinois Supreme Court

64 Ill. 353

1872 WL 8327 (Ill.)

JAMES HASLAM et al.

v.THE GALENA AND SOUTHERN WISCONSIN R. R. CO.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jo Daviess county.

Messrs. D. & T. J. SHEEAN, for the appellants.

Mr. L. SHISSLER, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was a proceeding on the part of the appellee to condemn a right of way under the Statute of Eminent Domain, passed at the last session of the legislature. The petition by which it was commenced was presented to the county judge, in vacation, on the 12th of July. He thereupon indorsed an order setting it for hearing on the 24th of July, and directing the clerk to issue a summons, returnable on that day. The clerk did so, and also issued a venire for a jury, returnable on the same day.

The first point made by the counsel for appellant is that this was error, because the regular term of court began on the 15th of July and continued until after the 24th, when the damages were assessed by the special jury. It is insisted that the case should have been tried by the regular jury, because it was in fact heard in term time. This position is based on the first few words of section 6 of the statute, which are as follows: “In cases fixed for hearing in vacation, it shall be the duty of the clerk,” etc., the section proceeding to provide for summoning a jury. We are, however, of opinion that this language is to be construed with reference to the fact that the hearing is fixed and the order therefor made in vacation, and not with reference to the day appointed for the hearing. The construction should be as if the statute read: “In cases fixed in vacation for hearing.” This construction is not at all forced, and is much more convenient, practically, than the other, and we must suppose it to be the one intended by the legislature. The statute requires the summons to be served more than 10 days before the hearing, and it would be impossible, under the construction contended for by appellants' counsel, that the clerk should always know whether the return day would be during term time or not, and he would, in such cases, be unable to determine whether he should issue a special venire or not. The better construction is that, when the petition is filed in vacation, the whole proceeding should be regarded as a proceeding in vacation, notwithstanding an intervening term, unless the parties agree to accept the...