Gilkerson v. Scott

Citations

• 76 Ill. 509

Syllabus

<p>1. Appeal—trial, whether de novo—drainage act. Tinder the Drainage act of 1871, on an appeal from the proceedings to the county court, a trial de novo may be had; but on appeal from the county to the circuit court, a trial de novo is not given.</p> <p>2. Same—act relating to, construed. The present law, R. S. 1874, p. 344, § 187, which provides that appeals from the county to the circuit court shall be tried de novo, has no application to appeals taken before such law took effect.</p> <p>3. Dbainage—referring cause hack to commissioners. Section 14 of the Drainage act of 1871, which provides for referring back to the commissioners of highways their report for amendment, relates to the time of hearing upon the question of confirmation of the report. The court has no power to make such order after the jury have reported, whose action is based upon the report of the commissioners.</p> <p>4. Same—waiver of defective notices by appearance. Objections to defective notices in proceedings under the Drainage act will be waived by subsequent appearance.</p> <p>5. It is a fatal irregularity at the meeting of the jury to correct their assessment of damages and benefits, at which they are to hear objections and evidence, to select a new juror in place of one who acted in making the preliminary assessment, but who failed to attend on the secvjd meeting; and a party who does not appear at such latter meeting does not waive the irregularity.</p> <p>6. Same—each tract must be assessed according to benefits. It is error to assess the whole of the expense of making a drain and the costs of the proceeding upon one tract of land, leaving another benefited not charged with its proportionate share.</p>