295 Ill. 504 | Ill. | 1920
delivered the opinion of the court:
John G. Pratt and others filed their petition in the county court of Cass county April 28, 1920, for the organization of certain lands described into the Sangamon Valley Drainage and Levee District. Pratt was active in promoting the organization of the district and employed counsel for that purpose. On the same day the petition was filed Pratt withdrew it from the files and took it to his attorney for the purpose of preparing notices to be given of a hearing on the petition. Notices were prepared, published and posted that a hearing would be had on the petition May 24, 1920. The notices bore the name of the county clerk and were published and posted in the manner the statute provides in such cases. On the day fixed for the hearing William B. Harris and several other owners of land in the proposed district come by “their attorney and enter their limited appearance herein and object to the jurisdiction of the court and move to dismiss the said petition, and for cause of their motion state that the clerk of the county court of Cass county never gave, or caused to be given, notice of the presentation and filing of such petition, as provided by law.” Affidavits of others than the county clerk were filed as to the fact of the publication and posting of the notices. Henry Jacobs, county clerk of Cass county, was called by the objectors and testified orally that he never gave any notice of the filing and hearing on the petition; that he was never requested by anyone to give such notice and never authorized anyone to give such notice for him; that the notices were not signed by him, and he never authorized anyone to sign his name to a notice. The clerk testified that he talked with Pratt the day fixed for the hearing, and Pratt said he had gone along and given the notices and thought it would be all right. The clerk told him he (Jacobs) was not interested in the casé, and that it was all right with him if the judge thought it was all right. We are warranted in concluding from the testimony of the clerk, Pratt and his attorney that the notices were prepared, or the form of them, by Pratt’s attorney and were published and posted without the knowledge or direction of the clerk. The motion to dismiss was heard May 24 by the judge of the county court of Cass county but was not decided that day, and the court adjourned to the day following. May 25 the petitioners filed a motion and petition to change the venue from the county judge of Cass county. The record shows that the objectors “by their attorney” objected to the change of venue at that time for the reason the hearing was set for the-day before, that they had submitted their proof of purported notices given, and the court had indicated his position. The court granted the motion for a change of venue, and a further hearing was postponed until June 1 before the county judge of Mason county, who, as we understand it, heard the oral and documentary evidence to which we have referred and entered an order dismissing the petition for want of jurisdiction. Petitioners have prosecuted this appeal to this court.
We are of opinion that even if the notices of the time and place of the hearing were" insufficient and the court never acquired jurisdiction of the persons of the objectors, the court had jurisdiction of the subject matter and erred in dismissing the petition. On that question this court said in Donner v. Highway Comrs. 278 Ill. 189: “The statute confers jurisdiction on county courts to organize drainage districts. The petition in question, when filed in the county court, together with the statute, gave the court jurisdiction of the subject matter.” Notice is required to be given of the • filing and hearing on the petition of the parties interested, for the purpose of giving the court jurisdiction of their persons, and if notices were not given in accordance with the requirement of the statute the court did not lose jurisdiction of the subject matter, but the hearing should have been postponed to a future date so that the required notice could be given. The only ground assigned by appellees for their motion to dismiss the petition was, that the county clerk had never given, or caused to be given, the notices. The statute requires the clerk to cause notice to be given, but, as we have said, his failure to do so did not authorize the dismissal of the petition.
Furthermore, it is insisted by appellants that appellees entered their appearance. It cannot be doubted that appellees could have waived service by notice and have given the court jurisdiction of their persons by entry of their appearance. In their motion to dismiss, they by their attorney entered their limited appearance for the purpose of making the motion to dismiss for want of jurisdiction. The common law rule is, that a plea to the jurisdiction of the person must be pleaded in person and not by attorney. If pleaded by attorney it admits the jurisdiction of the court. Mineral Point Railroad Co. v. Keep, 22 Ill. 9; 31 Cyc. 166; 21 R. C. L. 543.
Appellees rely on Louisville and Nashville Railroad Co. v. Industrial Board, 282 Ill. 136. There a motion was made by attorney limiting the party’s appearance for the purpose of the motion to dismiss the proceeding for want of jurisdiction. It was objected that the question of jurisdiction could not be raised by attorney but must be raised in person. The court referred to Mineral Point Railroad Co. v. Keep, supra, and said the question might be raised by motion by attorney “where the objection is apparent on the face of the record.” In this case the objection was not apparent on the face of the record and parol evidence was required to show why the court did not acquire jurisdiction. The record further shows that on the day the motion for a change of venue was made, again “come the objectors by their attorney” and object to the motion, assigning reasons for such objection. This was not a limited appearance ■ for any purpose, and we are of opinion it must be held appellees by their appearance gave the court jurisdiction of their persons.
The judgment of the county court is reversed and the cause remanded.
, , , , Reversed and remanded.
