People ex rel. Yohnka v. Kennedy
| Decision Date | 22 October 1937 |
| Docket Number | No. 24231.,24231. |
| Citation | 10 N.E.2d 806,367 Ill. 236 |
| Parties | PEOPLE ex rel. YOHNKA v. KENNEDY, County Superintendent of Schools (DENNISON, et al., Appellants). |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Petition by the People, on the relation of Harry W. Yohnka, for a writ of mandamus against Clarence J. Kennedy, Superintendent of Schools of Kankakee County. From an order awarding a writ of mandamus, Rossie Dennison and others appeal.
Affirmed.Appeal from the Circuit Court, Kankakee County; W. R. Hunter, judge.
Anker C. Jensen, of Kankakee, for appellants.
V. A. Parish and Eva L. Minor, both of Kankakee, for appellee.
The questions presented in this cause are whether section 91a, added to the School Law in 1929 (Laws 1929, p. 741 [Smith-Hurd Ill.Stats. c. 122, § 99a note]), is void and unconstitutional in its entirety, and the right of appellants to prosecute this appeal. Appellee and others filed a petition with the county superintendent of schools of Kankakee county for the annexation of certain nonhigh school territory to the Momence Community High School District No. 158. It is agreed that the petition and proceedings conformed to the provisions of section 91a. The county superintendent refused to annex the territory. Upon relator's petition, and the answer of the county superintendent of schools, the circuit court awarded a writ of mandamus commanding the annexation.
Appellants were not parties to the mandamus proceeding. They appeal on the ground that they were owners of land within the territory ordered to be annexed, and are injured by the order awarding the writ, and will be benefited by its reversal. Appellee contends that neither the record nor the assignment of errors show that, at the time the notice of appeal was filed, appellants owned any land in the territory ordered to be annexed, and that, therefore, they have no right to appeal.
Prior to the enactment of the Civil Practice Act, one not a party to a suit had no right to appeal. People v. Franklin County Building Ass'n, 329 Ill. 582, 161 N.E. 56. The method for review in such a case was by prosecuting a writ of error. Section 81 of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 205) provides that the right theretofore possessed by any person not a party to the record to review a judgment or decree by writ of error shall be preserved by notice of appeal. To entitle such a person to review he must be injured by the judgment, order, or decree, or be benefited by a reversal, or be competent to release errors. Before he can successfully prosecute an appeal, his interest in the suit must appear in the transcript of the record, or be alleged in the points relied upon for reversal. People v. Estate of Harrigan, 294 Ill. 171, 128 N.E. 334. A notice of appeal is a part of the record. The notice of appeal in this case alleges that appellants own land in the territory sought to be annexed; that they are injured by the order; and that they will be benefited by a reversal. The assignment of errors alleges that they have been landowners for many years in such territory, with the same allegations of injury and benefit. Their right to appeal sufficiently appears. Moreover, if appellee desired to challenge that right it should have moved to dismiss the appeal instead of asking an affirmance of the order.
Section 91a provides for creating new districts and the alteration of the boundaries of existing districts by the county superintendent of schools when petitioned by the requisite number of voters. By separate numbered paragraphs, it specifies he shall change the boundaries of township or community high school districts so as, first, to detach territory from one high school district and add it to another high school district; second, to create a community high school district from territory belonging to one or more township or community high school districts; third, to annex territory not within a high school district to an existing high school district; and, fourth, to create a community high school district from territory belonging to one or more high school districts or a nonhigh school district; provided, no new community high school district be created wholly or in part from territory belonging to one or more high school districts unless the new district, and each of the remaining districts affected, contains an incorporated city or village of at least 3,000...
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