Trammel v. Trammel

• Decision Date: 19 June 1934
• Docket Number: No. 22451.,22451.
• Citation: 357 Ill. 113,191 N.E. 248
• Parties: TRAMMEL et al. v. TRAMMEL et al.
• Court: Illinois Supreme Court

357 Ill. 113

191 N.E. 248

TRAMMEL et al.

v.TRAMMEL et al.

No. 22451.

Supreme Court of Illinois.

June 19, 1934.

Partition proceedings by Luna Trammel and others against Hubert Trammel and another, wherein Lucy Trammel filed a cross-bill. Fom an adverse decree, the defendant Lucy Trammel appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Pope County; D. F. Rumsey, Judge.

Durfee & Holmes, of Golconda, for appellant.

C. O. Conley, of East St. Louis, and William B. Morris, of Golconda, for appellees.

FARTHING, Justice.

John J. Trammel and Lucy Fritch (also known as Lucy Trammel, the appellant) were married December 2, 1930, by Ray Burns, who had been elected a justice of the peace in November, 1929, in Eddyville precinct, Pope county. This election was the regular quadrennial one, at which two justices were elected for each precinct in counties like Pope, which are not under township organization. Burns had moved his residence from Eddyville to Alexander precinct during the preceding summer. He was therefore no longer a resident of the political subdivision for which he had been elected. No irregularity or defect is pointed out in the marriage except that it is claimed that Burns had lost his authority to perform marriage ceremonies by his removal from Eddyville precinct. Trammel died intestate on September 18, 1932. Thirteen of his children filed a bill for partition in the circuit court of Pope county. They made the fourteenth child and Lucy Fritch defendants. Lucy Fritch Trammel filed a cross-bill claiming, as his widow, dower and homestead in the lands of which Trammel died seized. The circuit court dismissed the cross-bill for want of equity, and decreed partition as prayed in the original bill. This appeal followed.

The effect of the chancellor's rulings was that the marriage between John J. Trammel and Lucy Fritch was void because Burns, the justice of the peace who performed the ceremony, had moved out of the precinct for which he was elected.

Appellant contends, first, that by the removal of the justice he was not divested of his official authority; second, that, even if he was not a justice of the peace de jure, he was a justice of the peace de facto, and that his official acts are not open to collateral attack; and, third, that under the circumstances of the marriage it is legal whether the party who officiated at the ceremony was authorized to do so or not.

Section 32 of article 6 of the Illinois Constitution provides that the elective and appointive officers referred to in that article shall, ‘respectively, reside in the division, circuit, county or district for which they may be elected or appointed.’ The office of justice of the peace is one of those mentioned in the article. Section 1, c. 79, Smith-Hurd Rev. St. 1933, provides for the election of justices of the peace in the counties mentioned, and section 7 of that chapter provides for filling vacancies in case of ‘death, resignation, removal from the town or precinct, or other cause.'

Appellees rely upon section 32 of article 6 of the Constitution and sections 1 and 7 of chapter 79 of the statutes above referred to, to support the contention that Burns was neither a justice of the peace de jure nor de facto after his removal from Eddyville precinct. There is no disagreement as to the fact that Burns had been elected and that he had qualified and had acted as a justice of the peace. At one time he was a de jure officer. He still retained his docket and had not delivered it to the county clerk. If a direct attack had been made, it would have succeeded because of the fact that he no longer resided in the precinct for which he was elected justice of the peace. The attack here, however, is collateral and not direct. The act sought to be avoided is ministerial in character rather than judicial. In Pritchett v. People, 1 Gilman, 525, we said: ‘At the time these acts were performed, Courts of Probate had, by law, the unquestionable right to grant letters testamentary and of administration, and to take bonds from executors and administrators. These are ministerial and not judicial acts. Whether Lester was de jure the Judge of Probate for Marion county, cannot be inquired into collaterally in this suit. The only way in which that question could be properly determined would be, in a proceeding instituted for the purpose of testing his right to the office. It is sufficient for all the purposes of this case, if he was de facto the Judge of Probate. It is a general principle of the law, that the ministerial acts of an officer de facto are valid and...