Town of Audubon v. Hand

• Decision Date: 17 December 1907
• Citation: 231 Ill. 334,83 N.E. 196
• Court: Illinois Supreme Court
• Parties: TOWN OF AUDUBON v. HAND.

231 Ill. 334

83 N.E. 196

TOWN OF AUDUBON

v.HAND.

Supreme Court of Illinois.

Dec. 17, 1907.

Error to Circuit Court, Montgomery County; S. L. Dwight, Judge.

Action by the town of Audubon against J. W. Hand. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

See 79 N. E. 71.D. H. Zepp and Jett & Kinder, for plaintiff in error.

Lane & Cooper, for defendant in error.

CARTWRIGHT, J.

On March 4, 1903, the commissioners of highways of the town of Audubon, in Montgomery county, made an order purporting to lay out a public highway 1 mile in length and of the width of 40 feet, which crossed lands of the plaintiff in error, J. W. Hand. He appealed to three supervisors, on the ground that the commissioners, had no jurisdiction to lay out the road, and the supervisors reversed the order of the commissioners on that ground. The circuit court of Montgomery county allowed a writ of certiorari to review the record of the proceedings of the supervisors and quashed said proceedings. In September, 1903, the commissioners served notice on plaintiff in error to remove his fence from the alleged highway. He refused to do so, and the commissioners removed the fence, and he put it back. Another notice was served on him to remove the fence which he had replaced, and he did not remove it. The commissioners then brought suit in the circuit court of said county in the name of the town of Audubon, defendant in error, in an action of debt to recover the penalty prescribed by the statute for obstructing a public highway. Plaintiff in error pleaded nil debet, and there was a trial by the court without a jury. The court found the issues against the plaintiff in error and entered judgment against him for $3 debt and costs. He appealed to the Appellate Court for the Third District, and that court reversed the judgment without remanding the cause. A writ of error was sued out of this court by the defendant in error to review the judgment of the Appellate Court, and this court reversed the judgment of the Appellate Court on the ground that a freehold was involved and the Appellate Court had no jurisdiction. The cause was remanded to the Appellate Court, with directions to dismiss the appeal. Town of Audubon v. Hand, 223 Ill. 367, 79 N. E. 71. Plaintiff in error then sued out a writ of error from this court to the circuit court of Montgomery county, and the record of that court is before us for review.

To maintain the issues on the part of the plaintiff, the final order of the commissioners purporting to lay out the road was offered in evidence, and it recited that on January 5, 1903, they received the petition for laying out the road; that they fixed upon January 16, 1903, at 2 o'clock p. m., as the time when and the site of the road as the place where they would meet to examine the route of said road and hear reasons for or against the laying out of the same; that they gave 10 days' notice of the time and place of such meeting, and that they met at said time and place and decided to grant the prayer of the petition. The order also recited the subsequent proceedings which culminated in the order. The record of the town clerk recited the same facts; that the commissioners fixed upon said time, at the site of the road, as the time and place they would meet to examine the route; and that they met at the designated time at the site of the road, and viewed and examined the road and decided to grant the petition. Neither in the order nor the record of the town clerk, nor elsewhere, was there anything to show that the defendant had appeared at the site of the road or in any of the proceedings.

Section 33 of the act in regard to roads and bridges in counties under township organization, in force July 1, 1883 (Laws 1883, p. 146), requires commissioners of highways, when they receive a petition for laying out a new road, to fix upon a time when and place where they will meet to examine the route of...