Henry v. Centralia & C.R. Co.

• Decision Date: 20 June 1887
• Citation: 121 Ill. 264,12 N.E. 744
• Court: Illinois Supreme Court
• Parties: HENRY and others v. CENTRALIA & C. R. CO.

121 Ill. 264

12 N.E. 744

HENRY and others

v.CENTRALIA & C. R. CO.

Supreme Court of Illinois.

June 20, 1887.

Appeal from county court, Washington county.

SCHOLFIELD, J.

This is an appeal from a judgment in a condemnation proceeding. The appellee filed a petition to condemn land for right of way for its railroad, and the land-owner thereupon filed a cross-petition for the assessment of damages to lands not taken for right of way. A verdict was returned by the jury assessing the compensation for land taken, and damages to land not taken, at $650. The court, after overruling a motion for a new trial, rendered judgment upon this verdict, and the case comes to this court by the appeal of the land-owner. Several grounds are urged for a reversal of the judgment.

1. It is contended that the court erred in compelling appellant to proceed with the trial before dispoing of the plea of nul tiel corporation. But since we have held there is no rule of law or practice authorizing the filing of any kind of an answer to a petition for condemnation of land under the eminent domain act, (Smith v. Chicago & W. Ind. R. Co., 105 Ill. 511,) it is impossible that this objection can be well taken.

2. It is next contended that the court erred in admitting improper evidence. This refers to certified copies of articles of incorporation of the petitioner, and evidence of user thereunder; and the objection is- First, that the articles ought not to have been admitted at all, because there was not also proof accompanying that the full amount of stock provided for had been subscribed; and, second, that in no event should the proof have gone to the jury.

The first objection is predicated upon Allman v. Havana R. & E. Co., 88 Ill. 521, in which it was held that, until proof of the whole amount of stock provided for being subscribed, there can be no recovery upon a subscription for stock. That decision is upon the principle that the legal existence of the corporation is the consideration of the subscription, and therefore, until it is proved, the contract is without consideration, and cannot be enforced. There must, in such cases, not only be proof of a corporation de facto, but like wise of a corporation de jure. Where the direct effect of the proceeding is to divest title in favor of a party claiming to be a corporation, the same rule also applies. See Hudson v. Green Hill Seminary Corp., 113 Ill. 618.

But this is regarded, not as a proceeding to determine titles, but merely to assess compensation and damages; and,...