Sweeney v. Chicago Telephone Co.

72 N.E. 677, 212 Ill. 475

• Court: Illinois Supreme Court
• Decided: December 13, 1904
• Status: Published

Opinion

Mr. Justice Cartwright

announced the opinion of the court:

In this case the plaintiff in error, Michael Sweeney, sued out a writ of error from this court to the county court of Lake county to review a proceeding in vacation before the judge of that court, on petition of the defendant in error, the Chicago Telephone Company, to condemn a right of way for its telephone line. The defendant in error has moved to dismiss the writ of error on the ground that the judgment can not be reviewed by that means.

The proceeding was in vacation under the provisions of the Eminent Domain act, and that act makes no provision for review of the record by means of a writ of error; "neither is there any other statute which gives the right to a writ of error in such a case. Section 12 of the Eminent Domain act provides for an appeal to this court, and there is no provision for prosecuting a writ of error. That the omission was intentional is clearly shown by the provisions of the act. Upon the return of the verdict the petitioner may either dismiss the petition before judgment, or appeal therefrom or make payment of the compensation within the time fixed by the order of the court. Section 13 provides that in case of appeal the petitioner shall have the right to enter upon the property and the use of the same, upon entering into a bond securing to the property owner the compensation to be finally adjudged in the case. If a writ of error is available to either party it is necessarily available to both, and it would not be thought that the petitioner could enter upon the use of property condemned, and after occupying it for any period within five years sue out a writ of error to reverse the judgment. It is clear that the legislature did not intend that the judgment should be reviewed except'by appeal. Article 9 of the City and Village act, and the Local Improvement act, recognize the right to a writ of error in a condemnation proceeding; but whatever the effect of such recognition may be, it does not confer the right in this class of cases.

There being no statute which permits a party to a condemnation proceeding to have the record reviewed by a writ of error, if it can be prosecuted at all it must be because the right to a writ exists apart from any statute authorizing it. A writ of error is a writ of right in all cases which are prosecuted according to the course of the common law; but it is not a writ of right in any special statutory proceeding. The condemnation of private property for public use under the Eminent Domain act is a special, statutory and summary proceeding. It may be prosecuted in vacation before the judge, or in term time, in accordance with the provisions of the act, which amount to a code of practice for that class of cases. The proceeding is regulated entirely by the statute, and is not governed, either as to pleading or practice, by the rules of the common law. The proceeding under the statute is summary, for the purpose of having the compensation ascertained and having the property condemned appropriated to the public use without delay. Being of that nature, there is no right to a writ of error unless expressly given by statute. The motion will therefore be allowed and the writ dismissed.

Writ dismissed.