Citations
- 333 Ill. App. 14
Full opinion text
Mr. Justice Bristow
delivered the opinion of the court.
This is a proceeding in mandamus instituted by People of the State of Illinois ex rel. B. M. Lewis Union Drainage District No. 1 of the Townships of Manteno and Sumner, County of Kankakee and State of Illinois against Edward Bust, as Commissioner of Highways of the Town of Will, County of Will and State of Illinois to compel the highway commissioner to pay or levy and collect a tax for payment of a drainage assessment against the Town of Will, for benefits to its public highways, levied by said drainage district.
The assessment proceeding was in the county court of Kankakee, Illinois. On February 8, 1944, a jury returned its verdict levying an' assessment against the Town of Will with its assessments against the lands of the drainage district. The county court confirmed the verdict and entered judgment upon it.
The petition for mandamus prays that defendant, appellant here, as commissioner of highways, be required to issue an order for payment of the assessment, if sufficient funds be in the treasury; or, if not, that the commissioner of highways be required to levy and collect a tax for the purpose of payment of the assessment. The order of the circuit court of Kanka-kee county directed the peremptory writ of mandamus to issue, with like command, as prayed in the petition. Appellant appeals from this judgment.
For reversal of the judgment, appellant contends that the Town of Will did not receive notice of the hearing before the jury in the county court, as required by sec. 3, ch. 42, entitled “Drainage” of the Illinois. Statutes [Jones Ill. Stats. Ann. 42.008], commonly called the “Levee” Act. At the hearing before the jury appellant appeared personally, testified and filed a written document objecting to the amount of drainage assessment against the Township of Will.
Appellant concedes that the boundaries of the drainage district embraces lands in Will county. No contention is made that there were no public highways in that part of Will county included in the drainage district. The basis of the contention of lack of notice is that no notice was posted at the door of the courthouse in Will county and appellant asserts that the Town of Will was not given notice by publication. We find nothing in the abstract showing lack of publication.
Appellants produced the county clerk of Kankakee county, who identified a certificate filed in the county court in the proceedings before the jury, which levied the assessment. The clerk testified that he had examined the files and found no other certificate had been filed relative to the posting of notices. The certificate identified by the clerk was an affidavit showing the posting of ten notices in the district and it concluded with the statement that the affiant had posted a copy of the notice at the door of the courthouse at Kanka-kee, Illinois. On this proof appellant bases his contention of lack of jurisidction of the county court to confirm the verdict of the jury and render judgment thereon.
Such proof was not sufficient to show lack of jurisdiction of the county court. Other affidavits may have been filed and presented to the county court and become lost or taken from the files. Oral proof of posting of a notice at the door of the courthouse in Will county may have been presented to the county court.
The proceeding ordering the work for which the assessment was levied, was under sec. 37 of the “Levee” Act [Ill. Rev. Stat. 1945, ch. 42, par. 37; Jones Ill. Stats. Ann. 42.051]. That section requires notice to be given as under sec. 3 of the Act. The county court had the right to make its finding of sufficient notice upon testimony taken in open court. Findings of the court based on testimony and oral proof is sufficient, in the absence of a bill of exceptions, which might show such proof insufficient. The statute, does not require proof to be made by affidavit. Westerhold v. Hale, 397 Ill. 567, 572; Stokes v. Bay Bottoms Drain. Dist., 278 Ill. 390, 398; People v. Ehler, 338 Ill. 67, 75. There was no report of proceedings at the trial in the county court introduced in the mandamus proceedings.
No contention is made by appellant that defects showing lack of jurisdiction, appear on the face of the record order of confirmation and judgment of the county court. In a collateral proceeding such judgment of the county court cannot be attacked collaterally, except for a jurisdictional defect appearing on the face of the record. People ex rel. Wheeler v. Harvey, 396 Ill. 600, 608; sec. 34½ “Levee” Act [Ill. Rev. Stat. 1945, ch. 42, par. 34; Jones Ill. Stats. Ann. 42.048]. And this proceeding in mandamus is a collateral proceeding to that in the county court. People v. Schwartz, 244 Ill. App. 137, 143; Commissioners of Highways of Dix v. Big Four Drain. Dist. of Ford County, 207 Ill. 17, 20, 21.
Where a judgment order finds that the parties have been duly notified, such finding cannot be ' contradicted or explained .by parol or other evidence outside of the record itself and proof su