Town of Audubon v. Hand

• Decision Date: 23 October 1906
• Citation: 79 N.E. 71,223 Ill. 367
• Parties: TOWN OF AUDUBON v. HAND.
• Court: Illinois Supreme Court

223 Ill. 367

79 N.E. 71

TOWN OF AUDUBON

v.HAND.

Supreme Court of Illinois.

Oct. 23, 1906.

Error to Appellate Court, Third District.

Action by the town of Audubon against J. W. Hand. The Appellate Court reversed a judgment in favor of plaintiff, and it brings error. Reversed and remanded.

Lane & Cooper, for plaintiff in error.

Jett & Kinder and D. H. Zepp, for defendant in error.

FARMER, J.

This was an action of debt commenced by plaintiff in error against defendant in error in the circuit court of Montgomery county to recover a penalty for the obstruction of an alleged public highway by defendant in error. There was no denial by defendant in error that he had obstructed the alleged public highway by building his fence therein, but his defense was that there was no legal highway at the place where the obstruction was placed. A trial in that court without a jury resulted in a judgment against defendant in error for penalty of three dollars and costs of suit. From that judgment defendant in error prosecuted an appeal to the Appellate Court for the Third District, where, upon a consideration of the case upon its merits, the judgment of the circuit court was reversed and the cause not remanded. From the judgment of that court this writ of error is prosecuted.

The sole question relied upon by plaintiff in error in its brief and argument for reversal of the judgment of the Appellate Court is that a freehold was involved in the case, and that the Appellate Court had no jurisdiction to entertain the appeal, and should have dismissed it. This court has repeatedly held that in suits begun in a court of record to recover a penalty for obstructing a public highway it is necessary to determine whether the public has a perpetual easement in said highway, and that a freehold is therefore involved. Town of Brushy Mound v. McClintock, 146 Ill. 643, 35 N. E. 159;Waggeman v. Village of North Peoria, 160 Ill. 277, 43 N. E. 347;Village of Crete v. Hewes, 168 Ill. 330, 48 N. E. 36;Farrelly v. Town of Kane, 172 Ill. 415, 50 N. E. 118;Taylor v. Pierce, 174 Ill. 9, 50 N. E. 1109;Perry v. Bozarth, 198 Ill. 328, 64 N. E. 1076;Village of Dolton v. Dolton, 196 Ill. 154, 63 N. E. 642. A different rule applies where the suit was instituted before a justice of the peace. In that court a freehold is only incidentally involved, because a justice of the peace has no jurisdiction to try title and determine the ownership of land. Village of Dolton v. Dolton, 201 Ill. 155, 66 N. E. 323. In that case it was said that in the cases where this court had entertained appeals coming directly to it where suits were instituted before a justice of the peace, the fact that they were instituted before a justice of the peace was not called to the attention of the court, and the question of whether a freehold was involved was not raised by the parties nor considered by the court. See, also, Herman v. Commissioners of Highways, 197 Ill. 94, 64 N. E. 337. It is clear from the authorities that, this suit having been instituted in the circuit court, a freehold was involved, and the Appellate Court was without jurisdiction to entertain the appeal.

It is insisted by defendant in error that, as the question was not raised in the Appellate Court, nor its jurisdiction challenged by plaintiff in error, the case having been submitted to that court by both parties upon its merits, plaintiff in error cannot...