People ex rel. Cash v. Wells

• Decision Date: 07 April 1920
• Docket Number: No. 12783.,12783.
• Citation: 126 N.E. 575,291 Ill. 584
• Parties: PEOPLE ex rel. CASH et al. v. WELLS et al.
• Court: Illinois Supreme Court

291 Ill. 584

126 N.E. 575

PEOPLE ex rel. CASH et al.

v.WELLS et al.

No. 12783.

Supreme Court of Illinois.

Feb. 18, 1920.

Rehearing Denied April 7, 1920.

Error to Circuit Court, McHenry County; Claire C. Edwards, Judge.

Proceeding in the nature of quo warranto by the People, on the relation of Edson Cash and others, against Frank C. Wells and others. Judgment in favor of relators, and defendants bring error.

Reversed and remanded, with directions.

D. T. Smiley, of Woodstock, for plaintiffs in error.

B. F. Manley and Paul J. Donovan, both of Harvard, and E. H. Waite, of Woodstock, for defendants in error.

CARTWRIGHT, J.

On the petition of the state's attorney to the circuit court of McHenry county leave was given to file an information in the nature of quo warranto requiring the plaintiffs in error, Frank C. Wells, Elmer Walter, and William Desmond, to make answer to the people by what warrant they claimed to hold, use, and enjoy the corporate powers, privileges, liberties, and franchises of a supposed drainage district known as the Chemung drainage district of McHenry county, in the state of Illinois, which they were alleged to have usurped. The defendants filed a plea setting forth at length the proceedings in the county court of McHenry county for the organization of the district, consisting of a petition to the court, the posting and publishing of notices for a hearing on the petition, a hearing by the court and a finding of all the necessary jurisdictional facts, and a judgment on March 20, 1916, declaring the district duly established as provided by law. The relators demurred to the plea and also filed a replication to a part of it, which was afterward withdrawn. The demurrer was sustained by the circuit court, and, the defendants having elected to stand by their plea, the court entered judgment finding that the alleged drainage district had no legal existence and the defendants were guilty as charged in the information and ousting them from exercising the powers, privileges, liberties, and franchises of a drainage district. A writ of error was sued out of this court to review the judgment.

In the proceeding by information in the nature of quo warranto, the only question that could be considered by the circuit court was whether the county court had jurisdiction of the parties and of the subjectmatter of organizing the drainage district. If it had such jurisdiction, the judgment entered could not be reviewed, reversed, or set aside except by appeal or on writ of error. People v. Waite, 213 Ill. 421, 72 N. E. 1087;People v. Munroe, 227 Ill. 604, 81 N. E. 704;People v. Niebruegge, 244 Ill. 82, 91 N. E. 115.

One ground of the demurrer was that the notices published and posted for a hearing on the petition were insufficient to give the court jurisdiction of the relators because the notices varied from the petition two days in the date of the act under which the district was proposed to be organized. The relators entered their special appearance and objected to the jurisdiction, but they also filed objections to the petition and participated in a hearing of their objections on the merits. An appearance for any other purpose than to question the jurisdiction of the court is a general appearance, and the purpose of notice being to inform the property owners and persons interested of the contemplated hearing, the relators having appeared to the merits, it is immaterial whether any notice was ever published or posted or what it was. By their objections they asked for an exercise of jurisdiction by the court and could not at the same time say that they refused to submit to the jurisdiction. Nicholes v. People, 165 Ill. 502, 46 N. E. 237;McChesney v. People, 178 Ill. 542, 53 N. E. 356;Dickey & Baker v. People, 213 Ill. 51, 72 N. E. 791;People v. Smythe, 232 Ill. 242, 83 N. E. 821;People v. Chicago Title & Trust Co., 261 Ill. 392, 103 N. E. 997;People v. Bloomington Cemetery Ass'n, 266 Ill. 32, 107 N. E. 143.

The jurisdiction to organize a drainage district is conferred upon county courts by statute, and when the jurisdiction is questioned the requirements of the statute must appear from the record. Aldridge v. Clear Creek Drainage District, 253 Ill. 251, 97 N. E. 385;Drummer Creek Drainage District v. Roth, 244 Ill. 68, 91 N. E. 63;People v. Darst, 265 Ill. 354, 106 N. E. 936. It was the view of the circuit court that the petition, a copy of which was set forth in the plea, did not contain all the requirements of the statute and was not sufficient to give the county court jurisdiction...