صور الصفحة
PDF
النشر الإلكتروني

plaintiffs. In such case, where the city is a party, it is the representative of the public. The people of the state are privies, and a judgment not the result of fraud and collusion is binding upon the people: Elson v. Comstock, 150 Ill. 303, 37 N. E. 207; O'Connell v. Chicago Terminal R. R. Co., 184 Ill. 308, 56 N. E. 355; State v. Rainey, 74 Mo. 229.

A very clear discussion of the question will be found in People v. Holladay, 93 Cal. 241, 27 Am. St. Rep. 186, 29 Pac. 54. In that case the suit was brought by the attorney general on behalf of the people, upon the relation of a citizen, claiming that certain land in the city of San Francisco had been lawfully dedicated to the public use as a public square, and had been entered upon by the defendant, Holladay, and the public use of the land obstructed by the erection of fences and buildings thereon. One of the defenses set up by Holladay in his answer was, that previous to the commencement of the suit he had brought an action against the city and county of San Francisco claiming title to the land and asking to have his title quieted as against the adverse claims of said city and county, and that in said proceedings, judgment was entered in his favor. The supreme court of California held that judgment was binding on the public, and said: "The city and county of San Francisco is a municipal corporation created by the legislature of the state, and has conferred upon it by the state full power and jurisdiction over the public squares within its territorial limits, with the right to sue and be sued, and this necessarily includes the authority to maintain and defend all actions relating to its right to subject to the public use such squares or land claimed by it to have been dedicated for such purposes; and in an action brought by it for the purpose of vindicating and protecting the public rights in such squares, or land claimed as such, the state would be bound by the 432 result, because in such action the city and county would, in fact, represent the people of the state by virtue of the authority given it to maintain such actions for the purpose of preserving the public rights of which it is the trustee.

. . . And we see no reason why these same rights might not also be tried and determined in an appropriate action in which the municipality might be a defendant-as, for instance, ejectment, where it had ousted the claimant from the possession, or by injunction, where it threatened to remove his buildings or trees or a portion of the soil from

the land claimed by it as a public square; and the public would be bound by the final judgment therein if the action was conducted in good faith on the part of the city. The rule that the citizen shall not be twice vexed for the same cause of action is as binding upon the state as upon other litigants; and the legislature, in conferring upon the city power to maintain and defend in the courts the rights of the state to streets and squares within its limits must be presumed to have done so with reference to this well-known maxim, and to have intended that the state should be bound by the result of such litigation."

The cases determined by this court, above cited, did not so directly involve the precise question to be determined as did the California case, but they are analogous in principle and the rules announced in them are clearly in harmony with the Holladay case (93 Cal. 241, 27 Am. St. Rep. 186, 29 Pac. 54).

Appellant contends that the deed of vacation of the street and alley executed by the Deerings and Howe was invalid, and that they knew or believed this to be true is shown by the fact of their agreeing to deed the city the strip of land above described, paying five hundred dollars in cash and seeuring the adoption of the ordinance of vacation. The merits of the suit by appellees against the city to establish their claim to the land in dispute cannot be inquired into by us in this case. The decree recites that the facts were stipulated between the respective parties. In the absence of 433 charges of fraud and collusion in the bill in procuring the decree it is not subject to attack, either directly or collaterally. Nothing appears upon the face of it showing fraud or bad faith or that the court did not act advisedly.

In O'Connell v. Chicago Terminal R. R. Co., 184 Ill. 308, 56 N. E. 355, certain parties filed a bill to enjoin the railroad company from constructing its roadbed across an alleged highway over certain premises in the village of Summit. Complainants denied the existence of the public highway, and on the trial offered in evidence a decree previously entered in a suit of Jane S. Martin against the village of Summit. That suit was a bill in chancery by Jane S. Martin denying the existence of the highway in question, and asking that the village of Summit be enjoined from further using it or prosecuting work on it as a highway. The decree found the allegations of the bill to be true that no such Am. St. Rep., Vol. 121-22

highway as claimed by the village existed, and perpetually enjoined the village as prayed. This decree was objected to on the ground that the Chicago Terminal Transfer Railroad Company and its codefendants were not parties to that suit and the decree was therefore not binding on them. The objection was sustained, and this court held the ruling of the trial court in sustaining the objection to be erroneous, on the ground that the decree in the Martin case was an adjudication that the highway did not exist, and while the Chicago Terminal Transfer Railroad Company and its codefendants were not parties to that suit, they were privies to the decree and were bound thereby as conclusively as was the village of Summit. The court said (page 324): "In the Martin case the village of Summit was defendant, and claimed, as the representative of the public, to be the owner of the highway in question. Upon its organization the village succeeded to whatever rights the town of Lyons had in the highway. The decree in the Martin case adjudicated upon the rights of the village in and to this very highway. The appellees last above named are here claiming the right 434 to use this highway through an ordinance passed by the village of Summit, giving them permission to cross the highway. They set up no rights here except so far as they derive them from the village and its ordinance, as already described; hence they cannot be regarded otherwise than as privies, claiming in privity with the village of Summit. Their rights are therefore affected by the decree rendered in the Martin case. As that decree held that the village of Summit had no right to the public highway which is here claimed to exist, the village could not clothe these appellees with any right or interest in said highway. In order to succeed here under the issues made by the pleadings, appellees must establish the existence of the alleged highway, throughout its whole length, across the three lots 5, 4 and 3, and as the Martin decree stands in the way of the establishment of any such highway, the defense made by the appellees to this bill falls to the ground. It makes no difference whether the decree in the Martin case was a consent decree or not. Even if entered by consent of the village, it is binding upon those who are in privity with the village."

In the California case, before cited, the court expressed its conviction that the judgment in favor of Holladay and

against the city and county of San Francisco was wrong, but said "its force as an adjudication of the rights of the parties thereto and those in privity with them is not affected thereby." In Knobloch v. Mueller, 123 Ill. 554, 17 N. E. 696, it was held a decree entered by consent cannot be reversed, impeached or set aside by bill of review or bill in the nature of a bill of review, except for fraud. Appellant places great reliance upon Jenkins v. Robertson, L. R. 1 H. L. Sc. 117. But we do not think it conclusive in favor of appellant's position, and in the absence of allegations of fraud in procuring the decree in the suit of appellees against the city of Chicago, we think it clear, under the decisions of this court and the courts of other states in the Union, said 435 decree was binding upon the appellant, whether erroneous

or not.

The decree of the superior court sustaining the demurrer and dismissing the bill is affirmed.

On Who are Bound by Judgments for or against a municipal or other governmental body or its officers, see the note to Henderson Co. v. Henderson Bridge Co., 105 Am. St. Rep. 204.

CHATTERTON v. CHATTERTON.
[231 Ill. 449, 83 N. E. 161.]

DIVORCE-Appeal After Death of Party Divorced.-The death of the plaintiff in a divorce suit before writ of review is sued out by the defendant does not destroy the marriage status so that there is no subject matter of which a court of review can assume jurisdiction. (p. 340.)

DIVORCE-Death of Party Divorced Prior to Appeal.—If the successful party to a divorce suit dies before appeal, it is not essential to the right to review the decree by writ of error that it appear from the record of the suit that the deceased left property in which the surviving husband or wife will take an interest upon the decree being reversed. (p. 340.)

DIVORCE-Appeal After Death of Party Divorced-Practice. Upon a writ of error to review a decree of divorce after the death of the successful party, it is proper to file in the appellate court an affidavit showing to whom the property of the deceased will pass under her or his will, and to make such persons defendants in error. (p. 340.)

DIVORCE-Appeal-Desertion.-A decree of divorce granted upon the ground of desertion is properly reversed where the record

fails to show that the desertion was willful, or without reasonable cause, as required by the statute. (p. 341.)

DIVORCE-Appeal by Writ of Error-Laches.-Upon a writ of error to review a decree of divorce, the defense or doctrine of laches does not apply, as the statute fixes the period within which the writ may be sued out. (p. 341.)

Wheelock, Shattuck & Newby, for the appellants.

T. M. Headen and G. I. Haight, for the appellee.

451 SCOTT, J. The appellee moved to dismiss this appeal. That motion will be denied. In view of the determination which we have reached upon the merits of the controversy, we deem it unnecessary to state the reasons which led to a denial of the motion.

It is contended by appellants that the complainant in the divorce proceeding having died prior to the time when the 452 writ of error was sued out of the appellate court, the marriage status was thereby forever destroyed and there was no subject matter of which a court of review could assume jurisdiction. This court has taken the contrary view in Wren v. Moss, 1 Gilm. 560, Wren v. Moss, 2 Gilm. 72, and Danforth v. Danforth, 111 Ill. 236. We are satisfied with the conclusions expressed in those cases.

It is then said, however, that such a decree will not in any event be reviewed unless it appears from the record that the party deceased left property in which the surviving husband or wife will take an interest upon the decree being reversed. If this be correct and the investigation of the court of review is confined strictly to the record made in the divorce suit, the right of the party against whom the decree passed to have the decree reviewed after the death of the successful party is of little practical worth, as it is not often that the record shows what, if any, property was owned by the party who has obtained the decree of divorce. In the case in 1 Gilm., above referred to, before the writ of error issued, the wife, against whom the decree of divorce had passed, filed in this court an affidavit showing to whom the property of the deceased husband would pass under his last will and testament, and the persons to whom that property would so pass were made defendants in error. Appellee pursued precisely the same practice in the appellate court in this case, and to this method of procedure we perceive no valid objection.

« السابقةمتابعة »