Watts v. McCleave

Wall J. It is assigned for error that the circuit judge, in vacation, entertained a petition by McLean and others, who were not made parties to the bill originally, and granted them leave to become defendants to the suit. It is urged that judges can exercise no judicial functions in vacation, unless they are specially authorized to do so by statute. This is well settled doctrine, but it is insisted by appellees that such power is conferred by Sec. 67, Ch. 37, R. S., which reads as follows: “The several judges of said courts shall have power, in vacation, to hear and determine motions to dissolve injunctions, stay or quash executions, to make all necessary orders, to carry into effect any decree previously entered, including the issuance of necessary writs therefor, to order the issuance of writs of certiorari, to permit amendments in any process, pleading or proceeding in law or equity; any order so made shall be signed by the judge making it, and filed and entered of record by the clerk of the court in which the proceeding is had, and from the date of such filing shall have like force and effect as if made at a regular term of said Court.” In the case of Blair v. Reading, 99 Ill. 600, the Supreme Court had occasion to consider this provision. There a cause in chancery was heard by the judge in vacation by mutual agreement, and it was held that the judge had no power to entertain an application by complainant to dismiss the bill as to one of the defendants, nor to require complainant to answer a cross-bill then filed by said defendant, nor to pass upon the sufficiency of the answer to said cross-bill, then filed by complainant under protest, nor to enter a decree pro confesso against him on his failure to further answer the cross-bill in obedience to a rule placed upon him to answer instanter. In the case of Devine v. The People, 100 Ill. 290, a bill of exceptions had been signed by the judge and filed in the proper offices; afterward, in vacation, at the instance of one of the parties the judge entertained a motion to amend the bill, and it was held by the Supreme Court that he had no power to do so. In both these cases the court announce the rule above stated, that judicial functions can be exercised by judges in vacation only when authorized by the statute, and seem inclined not to extend the authority by construction or presumption. In the case before ns the judge was called upon to exercise a judicial function highly important in its character. Persons not parties to the bill appeared before him in a county other than that in which the suit was pending, and alleged that they were interested in the subject-matter, were permitted to become defendants, and upon their motion, the original defendants not appearing, the injunction was dissolved. We are of opinion this action by the judge was without authority. Hammack v. Loan & T. Co., 105 U. S. 77. At the August term of the circuit court then next following, a default was entered as to the original defendants, and the record recites that the complainant thereupon moved for a decree as prayed in the bill, and that on a subsequent day, the court having duly considered said motion, it was ‘‘ordered and decreed by the court that said motion be refused, and that complainant’s hill be dismissed at the cost of complainant,” to which exception was taken. The record discloses no ground upon which this ruling can be sustained. The bill was good upon its face, there was no, answer by the original defendants, and the answer by the new defendants, which was filed without leave, afforded no sufficient reason for dismissing the bill. Even conceding that this answer, though improperly upo.n the files, might he deemed efficient as a pleading, it did not deny that the tax was levied for the purpose alleged in the bill, and the cause was not being heard upon any issue between complainants and the newly made defendants. But if, by the course of proceeding, it could be assumed that the irregularity by which the latter came into the case was waived or cured, and that the proceeding is to be treated as a hearing upon the bill and answer, both being sworn to and each being considered as evidence of the facts therein stated, still we think it was error to dismiss the bill. The statute provides: " It shall not be lawful for a board of directors to purchase or locate a school house site, or to purchase, build, or move a school house, or to levy a tax to extend schools beyond nine months, without a vote of the people at an election called and conducted as required in the forty-second section of this act.” R. S., Chap. 122, Sec. 48. In the case of School Directors v. Fogleman, 76 Ill. 189, it was held that under this provision it was not within the power of the directors to contract for the building of a school house without such authority from the people; that any orders issued by them for such purpose were void; that there being a want of power to issue such orders, there could be no innocent holders of them, and the fact that the building may have been constructed, accepted by the directors and used for school purposes, would not legalize the act or bind the taxpayers. The same views were expressed in Thatcher v. The People, 93 Ill. 240. . It would follow, necessarily, that if judgments are obtained in a suit against the directors upon a liability thus improperly incurred, the situation will not be changed so far as the taxpayer is concerned. Not being a party to the judgment his rights can not be affected by it. The decree is reversed and the cause remanded. Beversed and remanded. Casey, P. J., took no part in the decision of this case.