121 Ill. 264 | Ill. | 1887
delivered the opinion- of the Court:
This is an appeal from a judgment in a condemnation proceeding. The appellee filed a petition to condemn land for right of way for its railroad, and the land owner thereupon filed a cross-petition for the assessment of damages to lands •not taken for right of way. A verdict was returned by the jury, assessing the compensation for land taken, and damages to land not taken, at $650. The court, after overruling = a motion for a new trial, rendered j udgment upon this verdict, and the case comes to this court by the appeal of the land •owner. Several grounds are urged for a reversal of the judgment.
First—It is contended that the court erred in compelling ¡appellant to proceed with the trial before disposing of the plea •of nul tiel corporation. But since we have held there is no rule of law or practice authorizing the filing of any kind of •an answer to a petition for condemnation of land under the Eminent Domain act, (Smith et al. v. Chicago and Western Indiana Railroad Co. 105 Ill. 511,) it is impossible that this objection, can be well taken.
Second—It is next contended that the court erred in admit"ting improper evidence. This refers to certified copies of articles of incorporation of the petitioner, and evidence of Riser thereunder; and the objection is, first, that the articles •ought not to have been admitted at all, because there was not also proof accompanying, that the full amount of stock prowided for had been subscribed; and second, that in no event should the proof have gone to the jury. The first objection is predicated upon Allman v. Havana, Rantoul and Eastern Railroad Co. 88 Ill. 521, in which it was held, that until proof of the whole amount of stock provided for is subscribed, there can be no recovery upon a subscription for stock. That decision is upon the principle that the legal existence of the corporation is the consideration of the subscription, and, therefore, until it is proved, the contract is without consideration, and can not be enforced. There must, in such cases, not only be proof of a corporation de facto, but, likewise, of a corporation dejare. Where the direct effect of the proceeding is to divest title in favor of a party claiming to be a corporation, the same rule also applies. (See Hudson v. Green Hill Seminary Corporation, 113 Ill. 618.) But this is regarded, not as a proceeding to determine titles, but merely to assess compenisation and damages; and because of the peculiar language of our statute, we have held that1 it is sufficient, in this proceeding, to show a corporation defacto. (Ward v. Minnesota and, Northwestern Railroad Co. 119 Ill. 287.) The evidence introduced was clearly sufficient for that purpose. It is true, this, evidence should not have gone to the jury; but since it was sufficient to satisfy the court of the petitioner’s corporate existence, what harm can it have done ? We can perceive none.
Third—The last objection is, that the counsel for the railroad company was permitted to make improper remarks to-the jury, over appellants’ objections. The most objectionable-remarks are these: “This railroad will benefit the public and each of us, if built. If you fix these damages too high, the-company will not pay them, and the road will not be built. We will never get railroads if they have to pay such damages, for right of 'way. ” Where the language of counsel tends to-excite passion and prejudice to a degree that will probably cloud the judgment, and therefore improperly affe.et the verdict to be rendered, it should be promptly checked by the court at the time, and the counsel rebuked, and for a failure in this regard, a verdict on behalf of the party whose counsel thus abuses his position, should be set aside. But it is not to-be assumed that every mis-statement of law or of fact will have the effect of exciting improper prejudices. The instructions of the court and the good sense of a competent jury are. a .sufficient protection against ordinary errors of statement.. and false arguments of counsel. We find nothing in this-record to induce us to believe (the jury having been correctly-instructed as to the law,) that they were excited by these rémarks to act in a way they would not otherwise have acted.
The judgment is affirmed.
Judgment affirmed.
