Pratt v. Harris

• Decision Date: 21 December 1920
• Docket Number: No. 13592.,13592.
• Citation: 129 N.E. 277,295 Ill. 504
• Parties: PRATT et al. v. HARRIS et al.
• Court: Illinois Supreme Court

295 Ill. 504

129 N.E. 277

PRATT et al.

v.HARRIS et al.

No. 13592.

Supreme Court of Illinois.

Dec. 21, 1920.

Petition for organization of a drainage and levee district by John G. Pratt and others, objected to by William B. Harris and others. From an order dismissing the petition, petitioners appeal.

Judgment reversed, and cause remanded.

Appeal from Cass County Court; John Greenway, Judge.

J. J. Neiger, of Virginia, Ill., and Edward C. Craig and Donald B. Craig, both of Matoon, for appellants.

W. H. Dieterich, of Beardstown, for appellees.

FARMER, J.

John G. Pratt and others filed their petition in the county court of Cass county April 28, 1920, for the organization of certain lands described into the Sangamon Valley drainage and levee district. Pratt was active in promoting the organization of the district and employed counsel for that purpose. On the same day the petition was filed, Pratt withdrew it from the files and took it to his attorney, for the purpose of preparing notices to be given of a hearing on the petition. Notices were prepared, published, and posted that a hearing would be had on the petition May 24, 1920. The notices bore the name of the county clerk and were published and posted in the manner the statute provides in such cases. On the day fixed for the hearing, William B. Harris and several other owners of land in the proposed district came by--

‘their attorney and enter their limited appearance herein and object to the jurisdiction of the court, and move to dismiss the said petition, and for cause of their motion state that the clerk of the county court of Cass county never gave, or caused to be given, notice of the presentation and filing of such petition, as provided by law.’

Affidavits of others than the county clerk were filed as to the fact of the publicationand posting of the notices. Henry Jacobs, county clerk of Cass county, was called by the objectors and testified orally that he never gave any notice of the filing and hearing on the petition; that he was never requested by any one to give such notice and never authorized any one to give such notice for him; that the notices were not signed by him, and he never authorized any one to sign his name to a notice. The clerk testified that he talked with Pratt the day fixed for the hearing, and Pratt said he had gone along and given the notices, and thought it would be all right. The clerk told him he (Jacobs) was not interested in the case, and that it was all right with him, if the judge thought it was all right.

We are warranted in concluding, from the testimony of the clerk, Pratt, and his attorney, that the notices were prepared, or the form of them, by Pratt's attorney, and were published and posted without the knowledge or direction of the clerk. The motion to dismiss was heard May 24 by the judge of the county court of Cass county, but was not decided that day, and the court adjourned to the day following. May 25 the petitioners filed a motion and petition to change the venue from the county judge of Cass county, The record shows that the objectors ‘by their attorney’ objected to the change of venue at that time, for the reason the hearing was set for the day before, that they had submitted their proof of purported notices given, and the court had indicated his position. The court granted the motion for a change of venue, and a further hearing was postponed until June 1 before the county judge of Mason county, who, as we understand it, heard the oral and documentary evidence to which we have referred and entered an order dismissing the petition for want of jurisdiction. Petitioners have prosecuted this appeal to this court.

We are of opinion that even if the notices of the time and place of the hearing were insufficient, and the court never acquired...