Schafer v. Robillard

• Decision Date: 08 December 1938
• Docket Number: No. 24689.,24689.
• Citation: 370 Ill. 92,17 N.E.2d 963
• Parties: SCHAFER et al. v. ROBILLARD et al.
• Court: Illinois Supreme Court

370 Ill. 92

17 N.E.2d 963

SCHAFER et al.

v.ROBILLARD et al.

No. 24689.

Supreme Court of Illinois.

Oct. 13, 1938.

Rehearing Stricken Dec. 8, 1938.

Appeal from Circuit Court, Kankakee County; W. R. Hunter, judge.

Suit in ejectment by Bertha Schafer and others against Lorette Robillard and another. From a judgment for defendants dismissing the complaint, plaintiffs appealed to the Appellate Court for the Second District, which court, 294 Ill.App. 617, 13 N.E.2d 824, transferred the appeal to the Supreme Court, and defendants filed a motion to dismiss the appeal.

Judgment affirmed.T. R. Johnston and Victor N. Cardosi, both of Kankakee, for appellants.

John E. Holland, of Kankakee (Donald Gray, of Kankakee, of counsel), for appellees.

JONES, Justice.

Plaintiffs below have appealed from a judgment of the circuit court of Kankakee county dismissing a complaint in an ejectment suit against defendants. The appeal was transferred to this court by the Appellate Court for the Second District. 294 Ill.App. 617, 13 N.E.2d 824. The property in controversy is a strip of land in the city of Kankakee, extending in a southerly direction from the south side of Cobb boulevard to low watermark of the Kankakee river. The complaint describes the strip as 10 feet wide.

Defendants' motion in this court to dismiss the appeal has been taken with the case. Plaintiffs suggest that by appearing, filing brief and argument, arguing the case orally and submitting the cause on the merits in the Appellate Court, defendants have waived any right to rely upon the grounds assigned, and that the motion, here, comes too late. The record does not show such proceedings in the Appellate Court, and the suggestion cannot be considered. Defendants contend that because the abstract shows that notice of appeal was filed as of July 12, 1937, while the service of a copy on defendant's counsel was on July 10, the service was insufficient. They claim the service must be had after the notice is filed. The requirement of rule 34, Ill.Rev.Stat.1937, c. 110, § 259.34, that a copy of the notice of appeal shall be served within five days after the notice is filed in the lower court, is a limitation upon the time for such service. The service here was had before the limitation expired. The rule does not require notice of the filing but only service of a copy of the notice. Counsel for defendants had the same notice he would have had if the notice had been filed before the service. To hold the service was insufficient would be to adopt a strained construction of the rule not warranted by its terms. Neither is the fact that the abstract does not show the dates of serving a copy of the praecipe for record and notice of its filing, a sufficient ground for dismissing the petition. It shows the service and refers to the appropriate pages of the record. Rule 38, Ill.Rev.Stat.1937, c. 110, § 259.38, requires the abstract to be sufficient to present fully every error relied upon, and provides that it will be taken as accurate and sufficient for a full understanding of the questions presented for decision unless the opposite party shall file a further abstract. Defendants make no claim that the praecipe and notice of its filing were not, in fact, served within the time prescribed by rule 36, Ill.Rev.Stat.1937, c. 110, § 259.36. No issue being raised on that question, the abstract will be taken as sufficient to show due service. The contention that the abstract does not show it contains all the evidence heard is equally without merit. It shows at the beginning of the report of the proceedings: ‘And thereupon the plaintiffs, to maintain the issues on their part, introduced the following evidence, to-wit:’ This is followed by the evidence offered by plaintiffs, with a statement at the conclusion: ‘Here the plaintiffs rested.’ Immediately following this language there appears defendants' motion for judgment, the argument on the motion and its allowance. This is a sufficient showing without an express statement that it contains all the evidence heard. People v. Scowley, 353 Ill. 330, 187 N.E. 415;People v. Nelson, 320 Ill. 273, 150 N.E. 686;People v. Scanlan, 265 Ill. 609, 107 N.E. 149. The motion to dismiss the appeal is denied.

Plaintiffs, Charles Schafer and Bertha Schafer, are husband and wife. The defendants are likewise related. This litigation involves the location of the boundary line between the Schafer property and the Railroad property on the south side of Cobb boulevard, which runs east and west, and is about 400 feet north of the Kankakee river. Both properties are part of a tract formerly owned by Emory Cobb, who also owned most of the land in that vicinity. On January 3, 1900, Cobb executed a deed to plaintiff Charles Schafer, in which the land is described as ‘Commencing at a point Thirty (30) feet South of the centre line of Cobb Boulevard as now graded and on the East line of Osborne Avenue extended southerly in a direct line from the South line of the Stoddard Subdivision in the City of Kankakee, Illinois, thence southerly on said East line of Osborne Avenue extended to low water mark of the Kankakee River, thence westerly along said low water mark to a point where the East line of Lincoln Avenue in the said Subdivision extended in a direct line would strike said low water mark, thence northerly along said East line of said Lincoln Avenue to the south line of said Cobb Boulevard extended, thence East along South line of said Boulevard three hundred seventy-five (375) and three-tenths ( 3/10) feet to the place of beginning, containing three (3) fifty one hundredths ( 50/100) acres more or less.’ The Stoddard subdivision lies some distance north of Cobb boulevard. At the time the deed was made Osborne avenue had not been opened that far south, but was opened prior to the commencement of this suit. It runs southerly bearing slightly to the west, but does extend south beyond Cobb boulevard. Concurrent with the Cobb deed, a contract was executed reciting the purchase price as $300 per acre, providing for a survey to determine the acreage to low watermark, and an adjustment of payment according to the quantity of land shown by the survey. The survey was made by a surveyor employed by Cobb. He set stakes at each end of what he fixed as the east line of the property. Schafer immediately entered into possession and built a greenhouse near the east line. He erected a wire fence on the line as surveyed. It was in existence as late as 1933. In 1904 he built a dwelling-house on the west part of the tract, and lived there with his wife until 1927, when they moved to Kalamazoo, Michigan. The house has been occupied since that time by their daughter and her family, except about one year at the beginning of the period, when it was occupied by another tenant.

In 1909, Schafer sold the east 225 feet of the tract to his sister Emma Anderson, who built a house near the west line of her property. In 1916 she conveyed it to the defendant Amos H. Robillard. He and his wife moved into the house and have occupied it ever since. In 1922, Robillard conveyed the west half of the 225-foot strip to his wife, Lorette Robillard, who now holds title. In each instance the deed follows the description of the starting point and of the east line of the 225-foot tract as set out in the deed from Cobb to Schafer. In 1924, Schafer and his wife, in order to secure an indebtedness to plaintiff Amelia M. Schafer, conveyed the remainder of the tract to her. The deed describes the whole tract conveyed by Cobb to Schafer in the same language as the Cobb deed, ‘except the east 225 feet thereof.’ Amelia M. Schafer conveyed it back to Bertha Schafer in 1929 by a like description, and Bertha Schafer is the owner of record.

In 1903, Cobb conveyed to Lizzie LaBounty the land east of the tract he previously deeded to Schafer, describing it as commencing at the northeast corner of the land conveyed to Schafer. LaBounty laid out a subdivision with the west line on the line of the...