Pearson v. Zehr

Mr. Justice Scholfield delivered the opinion of the Court: The substance of this record, as we understand it, may be briefly stated thus: An action of trespass qu. cl. is brought against the defendants for entering the plaintiff’s close, and with force and arms killing his horses and destroying his harness. The defendants justify under the statute creating the board of live stock commissioners. Plaintiff, in effect, replies that the breaking and entering and destruction of property by the defendants, of which he complains, are not such as are contemplated by that statute, but that they are acts done in excess of any authority it confers. The defendants join issue on that replication, and the jury find for the plaintiff. It .is true there were, previously to the formation of this issue, demurrers by the plaintiff to former pleas of the defendants, but those were decided in favor of the plaintiff, and no errors were assigned, in the Appellate Court, on such rulings. It is not claimed that any error assigned in the Appellate Court questioned any ruling of the circuit court upon the validity of the statute. The rulings of the trial court, and the concession of the plaintiff in his. replications, are, that the statute is valid. At most, all that is questioned by the assignment of errors is the construction of the statute, but that is no ground for jurisdiction in this court in the first instance. (Gross v. The People ex rel. 95 Ill. 366.) The language of the statute is, “involving * * * the validity of a statute,” and we said of this language, in City of Cairo v. Bross, 99 Ill. 524: “As we understand it, the statute was intended to apply only where the validity of a statute, as originally passed, is the primary'inquiry.” The plaintiff saved no exceptions and assigned no cross-error in respect to rulings upon the statute. It is quite apparent that the validity of the statute might have been involved in this suit, as, for instance, if the plaintiff had demurred to the plea setting up the statute, or had objected to the introduction of evidence under the statute, and the court having decided against him, he had excepted to the ruling and assigned it as a cross-error. But a constitutional provision designed for the protection, solely, of the property rights of the citizen, may be waived by the citizen. (Cooley’s Const. Lim. 1st ed. 181.) And hence, if a party, at the time, make no objection to a ruling depriving him of such right, he can not afterwards assign it for error. (Hill v. Ward, 2 Gilm. 285.) Undoubtedly, an appellate court, where proper exceptions have been taken and errors are properly assigned, may disregard certain errors, upon the ground that they would have been immaterial had the court properly ruled on other questions ; but in such eases it is indispensable that cross-errors be assigned in regard to the rulings on the other questions. Dickson v. Chicago, Burlington and Quincy Railroad Co. 81 Ill. 215; The People ex rel. v. Brislin, 80 id. 423. The judgment of the Appellate Court dismissing the appeal for want of jurisdiction is reversed, and the cause is remanded "to that court with directions that it proceed to hear and decide the questions arising upon the errors assigned. Judgment reversed.