« SebelumnyaLanjutkan »
of the district and filed certain specified objections in writing. The objection to the sufficiency of the notice was not then made and is first raised in this court. This objection, if made to the jurisdiction of the court in the trial court, would have been well taken if appellant, by his appearance and filing objections which did not raise the question now made, had not waived it so far as he was concerned. He cannot for the first time raise it here.
Counsel for appellant seeks to avoid the force of this rule of law by the argument that his first objection was the court had no jurisdiction of the matter involved in said petition. Had that been the objection and counsel had there bided it would have great force; but after making that objection counsel proceeded to assign the reasons therefor, and among the reasons assigned the sufficiency of the notice is not included. The principle involved is the same as where, on a motion for new trial, certain specific reasons are assigned. They exclude others which might be urged under the general motion, and will be held to have waived all causes not set forth in the written reasons. (Ottawa, Oswego and Fox River Valley Railroad Co. v. McMath, 91 Ill. 104.) Whilst waiver or consent cannot give jurisdiction of a subject matter not within the jurisdiction of a court, yet appearance and waiver may give jurisdiction of the person.
Appellant now contends that there was no evidence that petitioners were the owners of the lands within the district to the extent of three-fourths the area of land assessed. The statute prescribes what is necessary to be stated in the petition, and requires it to be verified, etc. Most of the petitioners were those who were described as owners of the land in the petition for the organization of the district. The second, third and fourth assessments made showed the description of the land and ownership, and the evidence connects the petitioners with the ownership of lands to the full extent of the ownership, as shown in the organization of the district.
A petition to dissolve a district does not, in the absence of an issue made by a verified answer, require title to be proven as in ejectment. Presumptions will be indulged that the assessment is made to the owner of the lands on the lands, and when verified by affidavit attached to the petition will be accepted as sufficient, in the absence of any denial by answer.
Appellant sought to prove he would be damaged by a dissolution of the district, which evidence was objected to and the objections sustained, to which he excepted. The enactment of statutes is for the legislature; their construction is within the duties of courts. With the necessity or wisdom of the statute courts have nothing to do. By providing for the dissolution of the district and providing what should be done to effect such dissolution, the legislature did not see proper to provide the dissolution should be prevented by a single land. owner because he might be damaged by such dissolution.
The petition seems to have been carelessly and unskillfully drawn, but contains the essential elements required by the statute, and must be held sufficient. The manner of drawing the petition somewhat loosely may probably have resulted from the fact that the appellant, E. J. Hollenbeck, had entered into an agreement, for a valuable consideration, that the district should be dissolved. Without entering on a discussion of that question, and passing other minor questions which are deemed unimportant, we see no reason for disturbing the action of the court, so far as appellant is concerned, and the order of the county court of Lee county dissolving the district is affirmed.
EMIL GASCH et al.
C. L. NIEHOFF.
Filed at Ottawa March 28, 1896-Rehearing denied October 9, 1896.
1. INSTRUCTIONS-as to office of affidavit in attachment. An instruction in a suit commenced by attachment that the affidavit for attachment is not evidence, but that the jury are to find whether the statements made therein are true, is not erroneous.
2. APPEALS AND ERRORS—when question of law must be raised by instruction. To preserve a question of law on which the Supreme Court can act in a cause submitted to the jury on the facts proved, such question must be submitted as an instruction to be acted on by the court.
3. SAME-Supreme Court cannot review law and facts. The Supreme Court cannot review questions of fact and law submitted without instructions or propositions held or refused as law, under the statute providing that it must accept the facts as found by the Appellate and lower courts.
Gasch v. Niehoff, 54 Ill. App. 680, affirmed.
WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. FRANCIS ADAMS, Judge, presiding.
KRAFT, WILLIAMS & KRAFT, for plaintiffs in error. ALBERT H. MEADS, for defendant in error.
Mr. JUSTICE PHILLIPS delivered the opinion of the court:
The plaintiffs in error, who were the plaintiffs in the trial court, commenced a suit by attachment against C. L. Niehoff & Co. in the circuit court of Cook county, and filed their affidavit alleging "that C. L. Niehoff is about to depart from this State with the intention of having their effects removed from this State and about to remove their property from this State to the injury of plaintiffs, and have, within two years last past, fraudu
lently conveyed or assigned their effects, or a part thereof, so as to hinder and delay their creditors, and have, within two years last past, fraudulently concealed or disposed of their property so as to hinder and delay their creditors, and are about fraudulently to conceal, assign and otherwise dispose of their property and effects so as to hinder or delay their creditors." A declaration containing the common counts, with affidavit of merits, was also filed. To the declaration a plea of general issue was interposed, and a plea traversing the affidavit for attachment was filed. A trial before a jury resulted in a ver. dict on the issue on the affidavit for attachment for the defendant, and on the issue on the declaration the plaintiffs' damages were assessed at $2058.33. A motion for new trial on the issue on the writ, entered by plaintiffs, was denied and judgment entered. Exceptions were taken, whereupon plaintiffs prosecuted an appeal to the Appellate Court for the First District, where that judgment was affirmed. This writ of error is prosecuted.
In the affidavit for attachment and in the declaration the defendant is described as C. L. Niehoff & Co., without averring a firm or corporation, and the writ was served by an attachment levied on certain property and by reading to C. L. Niehoff.
No exception was taken to the admission or exclusion of evidence, and by consent of parties the court instructed the jury orally, the parties, by their attorneys, having waived written instructions. This charge to the jury was, that the affidavit was not evidence, but they were to find whether the statements made in the affidavit were true, and instructed them as to the form of their verdict. There was no error in the charge to the jury.
No question of law is presented on which this court. can act.
It is urged by plaintiffs in error that the evidence shows the defendant was a banker and received deposits from them, but the money was not accounted for. It is
also urged the evidence shows the defendant kept his books showing forced balances, and money deposited was taken from the bank by the defendant and his sons, who were his clerks. The contention of plaintiffs therefore is, the evidence discloses systematic stealing, covering a period of two years, by Niehoff and his sons; that there was no conflicting evidence, and from such a state of facts the law implies fraud; that fraud resulted as a legal consequence or conclusion. The argument is, where the evidence so thoroughly establishes the fraud charged as the ground of attachment, notwithstanding the jury returned a verdict for the defendant on that issue, the trial court should have granted a new trial on the ground the verdict is contrary to the law, because from such acts as are proved fraud is a legal consequence, and the Appellate Court erred in its refusal to sustain the assignment of error, whereby a question of law arises for this court to determine.
The cause was submitted to the jury on the facts proven, and to preserve a question of law on which this court can act it must be submitted as an instruction to be acted on by the court. Where questions of fact and law are involved in a case, by submitting them without instructions or propositions held or refused as law, the statute providing this court must accept the facts as found by the Appellate and trial courts would be disregarded, and we be compelled to pass on questions of both law and fact. Such practice was not contemplated by the legislature. No question arises in this record for our consideration, under the statute.
The judgment of the Appellate Court is affirmed.