Графични страници
PDF файл
ePub

opinion in argument that the provisions of the statute of Indiana for the adoption of children in that State applied to adults equally with infants, but it made no such decision, for that statute was not before it. In Rhode Island, with a statute very similar to ours, the word "child" was held to apply to minors, only, and jurisdiction was limited to the adoption of infants or minors. In re Moore, 14 R. I. 38.

On the hearing it was admitted by counsel for the appellants that since the revision of 1874 it has been the practice in the county court and circuit court of Cook county to enter decrees of adoption notwithstanding the persons to be adopted were more than twenty-one years of age, but that there is no record of any contest or objection having been made to any such petition for adoption. It is argued from this, on behalf of the appellee, that there has been a long continued construction by inferior courts of the State which should be followed. It is true that a long continued, uniform construction of a statute where the meaning is doubtful, by trial courts throughout the State, will be recognized and should have consideration by an appellate court in determining the proper construction of the statute, but this case is not within that rule. In view of the history of the legislation in question we do not regard the statute as of doubtful construction, and in such case the rule does not apply.

The appellee contends that the decree should be affirmed because no competent evidence was introduced or offered to prove Borden's insanity. The record shows that the appellants introduced a witness, and after showing his acquaintance with Borden asked him the question whether in his opinion Borden was sane or insane from 1900 until his death. The question was objected to as incompetent, irrelevant and immaterial, and thereupon the counsel for the appellants stated that he offered to prove that beginning with the year 1900, and until his death, Borden was insane, un

able to understand the ordinary business transactions of life and was subject entirely to the will and domination of Mrs. Davies. The court sustained the objection, stating that he declined to receive this evidence, or any evidence of like character, on the ground that the decree of adoption of the county court could not be attacked in this collateral manner. This was a sufficient offer of proof. The question asked was not objected to on account of its form but for immateriality. It was not immaterial, for the insanity of the grantor in the deeds was an essential element of the appellants' case. The appellants could not prove their whole case by the testimony of one witness or the answer to one question, and when the court sustained an objection to a material question and announced that no evidence of that character would be received, it was not necessary for the appellants, in order to preserve their rights, to call all their witnesses and interrogate each one of them.

It is suggested that the appellants did not prove, or offer to prove, that Mrs. Davies knew Borden was insane. They could not prove that she knew he was insane if the court would not allow them to prove he was insane. They did show, and she admitted, that she had lived in his family a number of years, and if the appellants had been permitted to prove his insanity we cannot say that the chancellor would not have been justified, on the evidence, in finding that the appellee's relations with the testator were such that she must have known of it.

The decree of the circuit court will be reversed and the cause remanded. Reversed and remanded.

Mr. JUSTICE DUNCAN, dissenting.

(No. 11042.)

THE PEOPLE ex rel. Louie H. Ennis, Appellant, vs. JOHN W. DICK et al. Appellees.

Opinion filed December 21, 1916-Rehearing denied Feb. 9, 1917.

1. DRAINAGE when an owner of land is deemed to have voluntarily applied to be included in an adjoining drainage district. Under section 42 of the Farm Drainage act an owner of land who connects the drains of his land with those of an adjoining drainage district and through them carries the drainage of his land to that district's ditch is deemed in law to have voluntarily applied to have his land included in the district, and by such voluntary application the owner is estopped to claim that the district is without authority to annex the land and assess it for the benefit it has received.

2. SAME when owner cannot complain that land is assessed by two drainage districts. Where the owner of land, by connecting his ditches and making formal application, has his land annexed to a drainage district, and several years later the owner of the same land voluntarily connects other drains with those of another drainage district, which makes an order annexing the land to that district, neither the owner nor his successor in title can complain that the land is included in two districts, and in such case each district may assess the lands for such benefits, only, as are derived from the drainage through the drains of that district. (Bishop v. People, 200 Ill. 33, People v. Crews, 245 id. 318, and People v. Lease, 248 id. 187, distinguished.)

FARMER, J., dissenting.

APPEAL from the Circuit Court of Piatt county; the Hon. GEORGE A. SENTEL, Judge, presiding.

THOMAS J. KASTEL, State's Attorney, CARL S. Reed, and REDMON, HOGAN & REDMON, for appellant.

JAS. L. HICKS, and W. THOS. COLEMAN, for appellees.

Mr. JUSTICE DUNN delivered the opinion of the court: Drainage district No. 3 of Unity township, in Piatt county, was organized in 1886 under the Farm Drainage act. In 1887, upon the petition of the owner of the southeast quarter of section 30, township 16, north, range 6, east

of the third principal meridian, that quarter section was taken into drainage district No. 3 by the commissioners and was classified and assessed, and the owner has since that time paid all assessments on the land. Hammond Mutual Drainage District of the town of Unity, in Piatt county, and the towns of Lowe and Lovington, in Moultrie county, was organized in 1889. The southeast quarter of section 30 adjoins the Hammond Mutual Drainage District. In 1902 the owner of the quarter section laid a tile drain therein, connecting with the ditches of the Hammond Mutual Drainage District, and in August, 1914, the commissioners of the latter district, under the authority of section 42 of the Farm Drainage act, made an order annexing the quarter section to the Hammond Mutual Drainage District and proceeded to classify it and levy an assessment upon it. Thereupon an information in the nature of quo warranto was filed in the circuit court of Piatt county on the relation of Louie H. Ennis, the present owner of the land, calling upon the commissioners of the Hammond Mutual Drainage District to show by what authority they exercised jurisdiction over the quarter section of land in controversy. Pleas and replications were filed, which need not be noticed because it was stipulated that the parties might introduce on the trial any evidence competent under any plea or replication properly pleaded. On a trial judgment was rendered in favor of the defendants, the information was dismissed and the relator appealed.

The only question in the case is whether the Hammond Mutual Drainage District could annex the land in controversy, which was already a part of drainage district No. 3. It was stipulated that all the proceedings in the organization of both districts were regular and the proceedings for taking the relator's land into each. of said districts were regular, but the relator claims that the proceedings of the Hammond Mutual Drainage District for taking her land into the district were not lawful because her land was al

When drainage

ready a part of drainage district No. 3. district No. 3 was organized a main tile was laid from the southwest corner northeast through the quarter section, which connected with the main ditch of district No. 3, and numerous lateral tiles were laid connecting with this main tile. The tile drain laid by the owner of the land in 1902 started at a point in the northwest quarter of the quarter section and extended south and southwest to a tile in the highway adjoining the quarter section, which through intermediate tile connected with the ditch of the Hammond Mutual Drainage District. This tile furnished drainage to about sixty acres of the quarter section all the time. The evidence shows that the general slope of the land, except a small part in the northeast corner, was toward the southwest, and that when the land was flooded the surface water ran to the southwest corner and finally reached the Hammond Mutual Drainage District's ditch through the tile laid by the owner of the quarter section and its connections.

Section 42 of the Farm Drainage act provides that the owners of land outside of drainage districts organized under that act may connect with the ditches of the district already made by the payment of such amount as they would have been assessed if originally included in the district, and that if individual land owners outside of the district shall so connect they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by such drainage shall be treated, classified and taxed like other lands in the district. It is under the authority conferred by this section that the respondents acted, and no question is made as to the regularity of the proceedings, but the appellant insists that two drainage districts cannot at the same time have jurisdiction over the same land, and that the fact that her land was already included in a drainage district precluded the Hammond Mutual Drainage District from annexing it to that district. The cases of Bishop v. People, 200 Ill. 33, People v. Crews, 245 id. 318, and People v.

« ПредишнаНапред »