Vill. of Dolton v. Dolton

• Decision Date: 18 February 1903
• Citation: 66 N.E. 323,201 Ill. 155
• Parties: VILLAGE OF DOLTON et al. v. DOLTON.
• Court: Illinois Supreme Court

201 Ill. 155

66 N.E. 323

VILLAGE OF DOLTON et al.

v.DOLTON.

Supreme Court of Illinois.

Feb. 18, 1903.

Error to circuit court, Cook county; Chas. G. Neeley, Judge.

Action by George Dolton against the village of Dolton and others to restrain defendants from enforcing a justice's judgment fining plaintiff for obstructing a highway. From a judgment in favor of plaintiff, defendants bring error. Reversed.I. T. Greenacre and Otto F. Reich, for plaintiffs in error.

John C. Trainor, for defendant in error.

The defendant in error, George A. Dolton, filed his amended bill in the circuit court of Cook county, representingthat the village of Dolton, by M. Robert Weidner, the president of its board of trustees, commenced an action against defendant in error before John E. Schafer, a justice of the peace, by filing a written complaint, in which he is charged witn encroaching upon, incumbering, and obstructing Hobson avenue, a public highway in said village, by placing a fence thereon and digging holes therein without having first obtained permission so to do; that defendant in error asked for and obtained a change of venue from said Schafer, but that Schafer improperly sent the case to D. C. McKinnon, who was not the next nearest justice of the peace; that a jury was demanded by defendant in error and duly impaneled before said last-named justice, and the cause was tried before the jury, which jury returned a verdict of guilty, and assessed his fine at $1 and costs; that the justice entered the judgment notwithstanding the protest of the defendant in error. The bill alleged that the verdict was against the evidence, the ordinances of the village, and the laws of the state, and was a mere nullity, and that the justice had no lawful authority or right to enter judgment thereon. Defendant in error alleged, in addition, that he feared plaintiffs in error would take out execution on the judgment and file a transcript with the clerk of the circuit court and put a cloud on his real estate, and that he ought not to be obliged to appeal from said judgment, but that its enforcement ought to be enjoined. He further represented that for many years he had been, and still was, the owner in fee of certain real estate in the village of Dolton, and that no public or private road had ever been in, upon, or over said premises, either by prescription, dedication, or otherwise, and that no improvements or repairs of any kind were ever made on the premises for the purposes of any such road by any person, corporation, or municipality, but that he has always had undisputed control and possession and the sole and exclusive use of the premises; that there is no such street as Hobson avenue in the village of Dolton, except, perhaps, on paper in the offices of plaintiffs in error; that Hobson avenue is a contemplated highway or street which the village of Dolton is seeking to establish over his real estate; that to establish such street would greatly damage defendant in error. He further represents that the title to real estate is directly involved in said cause, and that said suit was brought for the recovery of a freehold and to establish a perpetual easement over his property; that therefore the justice of the peace had no jurisdiction over the cause; that the decision in said cause directly and necessarily involves his title and freehold, and that if the village is successful he will lose his freehold in so far as the road is concerned, and that the village, by its officials, now threatens to take and damage his real estate, without compensation or due process of law, for said contemplated street; that M. Robert Weidner, the president of the board of trustees of the village of Dolton, has already destroyed a portion of the fence of defendant in error, and that he fears plaintiffs in error will destroy his fences and damage his real estate unless enjoined. He then invokes the aid of a court of equity, makes the village corporation, the president of its board of trustees, and the justice of the peace defendants, and prays that defendants answer; that the verdict and judgment be declared a nullity and vecated and set aside; that all of the defendants be restrained from issuing execution thereon, and from procuring or filing a real estate transcript thereon, and from levying execution on his property, or from otherwise attempting to collect the judgment; that on a hearing the injunction be made perpetual; that the court construe the verdict, and determine whether a judgment could be entered thereon under the ordinances, and whether the verdict and judgment are lawful or null and void; that the court will decree that the justice was wholly without jurisdiction to hear and determine the cause, and that the verdict and judgment are void; that the court decree that the title and freehold of the defendant in error were involved in the suit before the justice, and that the justice had no jurisdiction to hear or determine the cause, and for general relief.

Plaintiffs in error demurred to the bill, among other reasons, because, as they alleged, defendant in error had not stated a case entitling him to the relief prayed for, and because it appeared by the bill that he had an adequate remedy at law, and that the bill disclosed facts depriving a court of equity of jurisdiction to grant the relief prayed for; and also because the bill sought to stay the execution of a judgment in a quasi criminal case, and to stay and enjoin a judgment at law on the ground that the same is contrary to the evidence. The court overruled the demurrer, and (the plaintiffs in error abiding by it) entered a decree finding all the material allegations of the amended bill to be true, and that defendant in error was entitled to the relief prayed for. The decree declares the judgment a nullity, and perpetually enjoins the plaintiffs in error from issuing execution, procuring or filing a realestate transcript, levying execution, or attempting to enforce the payment of the judgment. It also construes the verdict to the effect that a judgment could not be entered thereon; that the verdict and judgment were unlawful, and wholly null and void and of no effect; that the title of the defendant in error to his real estate and freehold therein was involved in the suit before the justice, and that the justice was wholly without jurisdiction to hear, try, or determine said cause. An appeal was taken by plaintiffs in error to the appellate court, where the appeal was dismissed on the ground that a freehold was involved. On further appeal to this court the judgment of the appellate court dismissing the appeal was affirmed. Village of Dolton v. Dolton, 196 Ill. 154, 63 N. E. 642. Plaintiffs in error then sued out this writ of error, and have brought the case directly to this court.

CARTER, J. (after stating the facts).

This case was before this court in Village of Dolton v. Dolton, 196 Ill. 154, 63 N. E. 642, on appeal from a judgment of the appellate court dismissing the appeal to that court for lack of jurisdiction to hear the appeal. Village of Dolton v. Dolton, 99 Ill. App. 141. In disposing of the case the appellate court did not consider the merits of the controversy, but dismissed the appeal on the express ground that the complainant in the bill of complaint claimed the ownership of the land, and because the decree found such ownership in him, a freehold being involved. This judgment of dismissal was affirmed by this court for the same reason. The case has therefore not been heretofore considered on the merits, as contended by defendant in error, either by this or the appellate court.

The gist of the bill of complaint of defendant in error is that the justice of the peace did not have jurisdiction to try the case brought before him because a freehold was involved in that suit, and to show that a freehold was involved defendant in error alleges in his bill that he is the owner in fee simple of the alleged street or highway, and that the suit before the justice of the peace was a proceeding under the guise of a prosecution for the violation of a village ordinance, but was really brought to deprive him of his freehold, and impose upon his land a perpetual easement for such street.

The jurisdiction of a justice of the peace depends upon the statute. Section 1 of article 2 of the act of June 26, 1895, revising the law in relation to justices of the peace and constables, gives a justice of the peace jurisdiction, among others, in the following classes of cases...