Reid v. Morton

• Decision Date: 23 January 1886
• Citation: 6 N.E. 414,119 Ill. 118
• Parties: REID and others v. MORTON and others.
• Court: Illinois Supreme Court

119 Ill. 118

6 N.E. 414

REID and others

v.MORTON and others.

Supreme Court of Illinois.

January 23, 1886.

Error to Christian. Petition for rehearing filed at January term, 1886.

SHELDON, J.

This was an action of ejectment, brought by Lizzie T. Reid and Susan M. Olcott against Thomas C. Morton, on May 4, 1880, to recover an 80-acre tract of land in Christian county. Both parties claim title through Alvin Olcott, deceased, the ancestor of the plaintiffs, and plaintiffs' title to the land is conceded if it was not divested by certain proceedings in the Alton city court of Madison county, Illinois, commenced by Mary M. Olcott, their guardian, and resulting in a sale and guardian's deed. The plaintiffs denied that this city court ever had jurisdiction of the subject-matter involved here, either as a court of chan cery, or under the statute then in force.

On March 8, 1865, Mary M. Olcott, as the guardian of the plaintiffs, filed her petition in said Alton city court, in which it was stated that she was the legal guardian of Lizzie T. Olcott and Sue Olcott, minors, under the age of 18 years; that said minors were the owners in fee of certain real estate which it described; that the petitioner had exhausted all the personal estate of said minors, and that they had no means for their education and support, or for the payment of taxes on the real estate therein described, and that all such real estate was vacant and unoccupied, and was entirely unproductive, and was an expense to said minors, and concluding with the usual prayer for an order authorizing the sale of such land, etc. At the November term, 1865, said court found by its decree that due notice of the pendency of the proceedings had been given to all persons concerned, for at least three weeks prior to the last term, by publication; that the petition was duly filed and presented on the first day of the last term of court; that the petitioner had faithfully applied all the personal estate of the said minors which had come to her hands; and that it was necessary to sell the real estate described in the petition for the support and education of such minors, and ordered that petitioner sell said lands, and make report of such sale, etc.

At the first trial the defendant introduced a transcript of the proceedings in the city court, into which was copied a paper, purporting to be a report of sale, unsigned, and without any marks showing that it was ever filed, and no order confirming the sale was shown. The court found for the plaintiffs, when a new trial was taken under the statute. After the first trial the defendant procured an order to be entered in the city court nunc pro tunc, purporting to confirm the guardian's sale. To the introduction of this order of confirmation the plaintiffs objected, for the reason that the Alton city court had no jurisdiction of the subject-matter of the application by a guardian for the sale of a ward's land, either under the statutes then in force or by virtue of its chancery powers, and could have no chancery jurisdiction, as no part of the lands affected was situate within the limits of the city, or in the county of Madison, and because made without notice, and subsequent to the commencement of this suit, and because the deed was made before the alleged confirmation.

The questions presented by the record are: (1) Whether the Alton city court ever had a constitutional existence. (2) Did the act of 1859 establishing the Alton city court, grant jurisdiction to that court? (3) Conceding this was a constitutional court, whether it had jurisdiction of the subject-matter of a guardian's application to sell real estate, or acquired jurisdiction of the subject-matter in the case. (4) Whether the sale was invalid for want of an order of confirmation.

Section 1, art. 5, of the constitution of 1848, was as follows:

‘The judicial power of this state shall be, and is hereby, vested in one supreme court, in circuit courts, in county courts, and in justices of the peace: provided, that inferior local courts of civil and criminal jurisdiction may be established by the general assembly in the cities of this state; but such courts shall have a uniform organization and jurisdiction in such cities'

Under the proviso of the above section the general assembly, in 1853, passed a law (Laws 1853, p. 147) entitled ‘An act to establish the recorder's court of the city of Chicago.’ Section 1 of this act provided that the recorder's court should have concurrent jurisdiction, within said city, with the circuit court, of civil cases where the amount in controversy should not exceed $100, and in all criminal cases except treason and murder; and, further, that said court, and the judge and clerk thereof, should respectively have the like power, authority, and jurisdiction, and perform the like duties, as the circuit court, and the judge and clerk thereof, in relation to all matters, suits, prosecutions, and proceedings within the city of Chicago, so far as the same were not otherwise limited by the act. By an act entitled ‘An act to establish the court of common pleas of the city of Cairo,’ approved February 6, 1855, (Laws 1855, p. 155,) the general assembly granted to said court civil and criminal jurisdiction in all cases except in cases of treason, and in cases wherein the demand exceeded the sum of $50,000, and concurrent jurisdiction within the city, and within township 17 S., and range 1 W. of the third principal meridian, with the circuit court, except in the cases above excepted. The general assembly, by an act approved February 10, 1857, (Laws 1857, p. 29,) entitled ‘An act to give a uniform organization and jurisdiction to inferior courts of local jurisdiction in the cities of this state,’ provided that every act establishing an inferior court of civil and criminal jurisdiction in any city of this state should be so construed as to confer on such court a uniform organization and jurisdictionwith the recorder's court of the city of Chicago and the court of common pleas of the city of Cairo, anything in any such act to the contrary notwithstanding.

The general assembly in 1859, by an act approved February 9, 1859, (Laws 1859, p. 71,) established the Alton city court, and by the first section of the act granted to the court concurrent jurisdiction, within the city of Alton, with the circuit court of Madison county, in all civil and criminal cases, except in cases of treason and murder. The second section provides that the judge of said court shall possess the same powers as are vested in the judge of the circuit court, except as limited in the act. Section 25 of the act declares that ‘the act entitled ‘An act to give a uniform organization and jurisdiction to inferior courts of local jurisdiction in the cities in this state,’ approved February 10, 1857, shall be made a part of this act, as fully as if the same had been incorporated herein.'

As showing that the Alton city court never had a legal existence, it is insisted that the act of February 10, 1857, is absolutely void for uncertainty, repugnancy, and inconsistency, in that it is impossible to confer upon any court a jurisdiction at once uniform with the various jurisdictions of the recorder's court of Chicago and the court of common pleas of Cairo, and for the further reason that the act of February 6, 1855, is void for unconstitutionality in granting jurisdiction, without the city of Cairo, and within township 17 S., etc.; and, the act of 1855 being thus void, makes void the act of 1857, inasmuch as the latter refers to and adopts the former. And hence it is argued that the entire act of 1859 establishing the Alton city court is void, because in its twenty-fifth section it refers to and adopts those acts.

The matter of uncertainty, repugnancy, and incongruity in the act of 1857, in conferring upon all other city courts a uniform jurisdiction with the recorder's court of Chicago, and the common pleas court of Cairo, the two latter courts havingdiffering jurisdictions, might cause some doubt as to the precise extent of jurisdiction in criminal cases, and in civil cases where there was an amount in controversy; but this would be but a question of construction, and would not go to the validity of the act, especially in the particular of this proceeding for a guardian's sale, where there is no amount in controversy, and of which such recorder's court had undoubted jurisdiction from the grant to it of like power and authority as the circuit court had in relation to all proceedings within the city of Chicago, except as limited by the act establishing the court. We do not think, as suggested, that this meant only the general power and authority of the circuit court, and did not embrace its special statutory powers, like this one, of authorizing a guardian to sell his wards' land. A statute may be void in part, and good as to the residue; and conceding, without expressing any opinion upon the subject, that the act of 1855 was void in its conferring jurisdiction outside of the territorial limits of the city, and within township 17, we should hold the act valid in so far as it conferred jurisdiction within the city.

It is further urged, under this head, that it is only inferior local courts which, under the constitution of 1848, might be established in cities, and that this Alton city court is not an inferior court, inasmuch as it has concurrent jurisdiction, within the city of Alton, with the circuit court of Madison county in all civil cases. It has not equal jurisdiction with the circuit court of Madison county in criminal cases, and its jurisdiction in territorial extent is less than that of the circuit court. Making it a court of record does not, in our opinion, make it, as contended, a superior and not an inferior court, within the meaning of the constitution. It is not plain just what was meant by this use of the word ‘inferior’ in the constitution, in application to courts. A...