*1 the lands described in the deed. This cross-bill was stricken no relief not seeking recoverable under the answer.
Prior to a consideration of the merits a jurisdiction arises. This cause was to this court appealed presumably that a ground freehold is involved. A freehold is involved when or decree of the trial court one of the thereto loses and another gains freehold. In this case, while his answer and cross-bill that the deed to for the appellant alleges appellee benefit all unsecured void, creditors was the relief yet answer and cross-bill sought is, substance, have decreed a lien on the appellant’s judgment premises involved, event, to the In no un- subject only mortgage. the freehold be affected. der issues here made would up, There therefore no freehold involved in this case. No take are on which this court might other grounds alleged to re- and the court is without jurisdiction, view the cause. therefore transferred to Appellate
The cause is Illinois. Third District of Court for the
Cause transferred. (No. 19167. vs. et al. Goldsbery ex rel. Appellees, F. John et al. Appellants. Frank L. Zoller Opinion December *2 and C. G. for W. appellants. Kern, Hirschi, J. Attorney, State’s Furrow, H. Hut- O. Elmer Ernest for appellees. R. ton, Rodman, Robert Mr. this reported opinion: Edmunds Commissioner the relation of certain commissioners Upon highway information in the nature of land owners an private warranto Frank quo against respondents, .was L. H. and W. F. as com Zoller, Crouch, William Johnson J. as of a district missioners designated District of and Vermilion Drainage “Iroquois information, Illinois.” In the counties, original later leave and four additional counts which were filed by relators attacked, various court, upon jurisdictional of the In their district. organization pleas grounds, relied for the record justification upon respondents re- had found and which Iroquois county, it cited. that had jurisdiction and had de- entered an order claring district duly organized. were filed. Replications From the ouster judgment of after resulting hearing trial court two of Zoller respondents, have Johnson, appealed.
At the introduced in evidence the hearing respondents records of the and rested county court Iroquois county their case. took the They there, as do here they position that the to have record appellants, been that the record of the duly organized, is conclusive Iroquois county upon question dis- jurisdiction exercised that court organizing tend- trict, and that was to admit evidence any improper record. to contradict the recitals of such jurisdictional view the fact court’s finding was in the instance here very one essential an particular been in later themselves to have claimed appellants *3 thus con of the doctrine the and unsoundness error, danger However, as a of tended for is evident matter principle. District, cite North Fork counsel v. Drainage People 331 Waite, Wells, Ill. id. v. 584, People v. People 213 291 their are claimed to id. and other cases which support a number of settled cases down contention. These lay the argument appel do not out but bear they principles, dis drainage case. in the establishing lants present from the its jurisdiction court derives tricts its action arises to support alone. No statute, presumption Dis Clear Creek Drainage v. (Aldridge in any particular. District v. Drummer Creek trict, 251; Ill. 253 The id. 267.) Payson People, v. Roth, 68; id. 175 244 such creation authorized having Assembly General must be those conditions conditions, districts certain else the statute, by manner with in the prescribed complied Dis Creek Drainage (Soldier court is without jurisdiction. Wayne Co. Ill. 350; Railroad Central trict Illinois v. 323
365 these 262 If District id. Boggs, 338.) v. City Drainage has no the court fact, met, conditions are not, prescribed a finding confer on itself by making power of ju A recital were met. to show they purporting con render a judgment risdictional facts will not in itself v. Barnes, Ill. 326; Thompson clusive. v. 228 (Forsyth Graham, 303; 280 Ill. Whitman, 18 Wall. v. 457; People as to facts v. id. Seelye, 189.) 146 Jurisdictional into can be inquired districts organization McDonald, v. warranto by quo (People proceedings. the trial Wells, Consequently Ill. supra.) v. 514; People error per court in the committed present proceeding the jurisdic introduced challenging evidence to be mitting county. tional findings effect that there to the introduced evidence Appellees had not been a Levee provisions compliance fil notice of act as to the presentation of the district for organization petition act of this (Ca section It is court. provided pre that after petition hill’s 1929, chap. 42,) Stat. "the clerk of said filed, 2 of the act is scribed section of the pres notice three weeks’ (3) court shall cause addressed to be given, entation and of such filing petition at the thereof notice interested,’ by ‘to all persons in which or counties the county house of door of the court most ten in at least (10) situated, the district is thus notice district.” such public places ju court acquires prescribed process answers It place interested. risdiction of Pratt v. 204; v. Phillips, a summons. (Danaher at least Unless Harris, 504.) id. thus prescribed *4 had no jurisdiction court of matter. proceed Iro- court of the county submitted only proof the form in of notices as to
quois 366
of an “affidavit of executed by C. G. notices/’ Hirschi. This document is before us as an ex- original hibit. It embodies a of a copy printed notice, which is signed by the clerk of the Iroquois county, and which sets forth the termini starting routes, points, and general description work. The affidavit is the effect that on the day November, 14th copies notice on the front printed door of the court house of Iroquois and also “in county, ten of the most within the public places boundaries of the said proposed drainage district, follows.” Then follows a of these description various The document was places. originally but as it typewritten, now stands bears many and changes made with interpolations and ink in the pen portions describe these One bears places. description and changes made with ink of two different interpolations shades. In four instances these and ink and pen changes have the effect of interpolations notice in a dif- placing ferent location from that the affida- described altogether vit in its In one of form. these four original typewritten instances the words were: on a “One original typewritten the north west side of and south fence-post public sec- feet north of the southwest corner of highway 25 11 of the second north, town west range prin- 4 with the changes meridian.” As instrument stands, cipal on the it reads: on a “One fence-post interpolations, north and south west side of the highway public of section in town feet north of the southeast corner meridian, 11 west of the second north, range principal north highway running line of west public west from It line last aforesaid.” east and south form descrip- in its original typewritten the record fixed a latter instance point in this tion given as it stands whereas of the proposed boundaries it describes point and additions after the changes limits. *5 Be 8, This affidavit was sworn to on December 1924. the following: low there jurat handwriting me “The sworn to before amended foregoing Skeeters, this 22d A. W. day June, D. 1925. — Gilbert clerk.” The order of “in at ten of that notices were least finding posted the most in such public places proposed De D. was entered day November, A. 1924,” 14th cember or and the order the district 8, 1924, declaring was ganized commissioners respondents appointing entered December testified that doc 13, Slceeters that there ument was on December 8, 1924, The testimony insertions on it when was filed. pen an entered shows that were made under order changes stated that “leave is said granted which June amend the affidavit of notices commissioners to D. December, G. Hirschi on the 8th A. day made C. court entered It is certain that when 1924.” upon the order the district document creating its jurisdiction original type its finding affirmatively written as it it showed form, and then stood ten that one of the notices been posted district. proposed these circum- contend that under
Counsel for appellees jurisdiction organ- stances the orders finding induce- fraudulent through were entered the district izing satisfactory It is more that reason void. ment and were for the broader ground to settle the fact, as matter of actual were, of whether testi- this connection law. as required Frank son of Zoller, appellant that Harold on rebuttal fied when 14, 1924, on November was with witness Zoller, L. all ten of them were posted that notices, he posted district, describing the boundaries and sec- roads, references to cross-roads locations by that it was testified on cross-examination He tion lines. a disagreeable day; that he had with him a crude map, which he drew from on the description petition; this was not map drawn from any atlas or that he map; did not then have the blue-print district boun- showing ; daries that no roads were shown on the that at that map; time he was not familiar with the roads; that he did not mark down on the but on another map, slip paper, where he places notices; when he made the affidavit he did not know about the location of the roads; *6 that when he drew the he tried to down where put he he thought the notices and that the posted supposed were but when he descriptions correct, saw the know- plat, how ing just he they went, found that some were wrong; that his affidavit showed three or four notices possibly outside the posted district; that he didn’t the crude keep that he didn’t know whether he map; drew or correctly but not, tried that it was not drawn to; to and that scale, he did not know whether it was to show one drawn sec- tion with another. testimony Hirschi’s connecting correctly to notices was corroborated in a way posting general that of Harold Zoller. the other Robert R. hand, On testified that on December in 8, 1924, Rodman company he with F. went to southwest Goldsbery, appellee John corner of section and there attached to a board 4, found, a notice the a weather-beaten road, portion notices,” the “affidavit of same as that embodied in posting could of the section he and that at the southeast corner effect. to the same Wil- find no notice. testified Goldsbery November, liam about middle Newburn testified that he a man whom saw Leslie, with while company Joe an Hirschi he took to be of sec- corner at the southwest District notice not know that he did tion testified Leslie 4. Joe at that corner. a notice being but saw posted very whole was as a purported southern boun- and the line marking in shape, irregular was so. This line within dary boundary came particularly one feet thousand corner southwest of section where, the affidavit as it according originally stood, notice in was It is difficult under question not posted. stand anyone how unfamiliar with the roads and possess no more than a sketch on a crude lengthy legal which could be description, delineated any workable degree accuracy scale, adherence exact only might himself to suppose be within the boundaries set out as matter description, whereas, fact, he not would be. into Taking consideration all the circumstances and testi mony, we are opinion appellees sup amply in their ported contention the statutory requirement limits of the district physical boundaries not was met. This was in issue, trial be cannot disturbed. City Quincy v. Kemper, admitting claim that the appellants’
Even notice ques actually was at the location described affidavit as amended and was therefore within the physical boundaries of the a little only over two hundred feet from another the ten notices *7 claimed to have been the as posted. Accepting amended as well as the of one of these testimony Hirschi, two notices was within feet of the extreme twenty-five southeast corner of the other within two hun dred feet the same of corner. The some district embraced 2800 acres land, of over a extending of several territory it in miles. different ran miles Through several portions of roads. such could Whether notices disposition be held to meet of the statute is requirements open serious Tennessee District Moye, v. Drainage question. 296. if insist that there were in the any defects
Appellants their notice, effect was of no moment procedure were because all of relators either in court present December date fixed or had been notice, notified mail of on that date. That all hearing either present or been so notified is disputed by appel- lees. The record shows general appearance, order entered on that date indicates that the jurisdiction of the court was twelve The fail- questioned by persons. ure to in manner the statutory notices was not post proper cured acts by any affected. subsequent was introduced at effect hearing
Evidence that ten acres land for the or included petition and Vermilion Drain ganization District were Hoopeston Drainage age already part This in which had been District, organized proof 1910. court Ver the form of the record an milion the land being showing it ordered and that was nexed district Hoopeston The of that district. peti other lands assessed and when con cases is jurisdictional, in this class of an existing tains land included Illinois District v. Creek is defective. Soldier Lease, Ill. 187; Co. v. People Central Railroad supra; Crews, id. v. in which further respects to consider It is unnecessary are of Iroquois county the proceedings jurisdiction. to have been proper alleged of the circuit The judgment is affirmed. Mr.
Per foregoing opinion reported Curiam: is as the opinion hereby adopted Commissioner Edmunds therewith. entered accordance the court,
Judgment affirmed.