dissenting:
One of the errors assigned is, that the judge, who passed upon the objections and presided at the hearing before the jury in the court below, was without jurisdiction or power to act in the case, because he was the judge of the County Court of DuPage County, and was holding court in Cook County as the judge of the county court of Cook county at the same time at which the regular judge of the latter court was also holding court in Cook County.
Section 18 of Article 6 of the constitution of 1870 provides, that “there shall be elected in and for each county one county judge and one clerk of the county court, whose terms of office shall be four years.” I do not think that, under said section 18, the legislature has the power to authorize the county court of one county in this State to divide itself into two branches and hold sessions of both branches at the same time, one presided over by the regular county judge of the' county, and the other presided over by the county judge of another county called in for that purpose. Nor am I able to concur in the view, that such authority is conferred by the Acts of the legislature to which attention has been called, and which are hereinafter mentioned.
In 1879 the legislature passed an Act, providing “that the county judges of the several counties of this State, with like privileges as the judges of the circuit courts of this State, may interchange with each other, hold court for each other, and perform each other’s duties, when they find it necessary or convenient.” (1 Starr & Cur. Ann. Stat. page 731). Just what privileges of the judges of the Circuit Court are here referred to is not clear. The reference was probably to the privilege—granted by section 23 of the Act of 1874 to revise the law in relation to circuit courts and the Superior Court of Cook County —of receiving a compensation not exceeding §10.00 per day for the time -they should hold court outside of their own circuits. But this Court held in 1874, that said section 23 was unconstitutional, and that Supreme and Circuit judges could not receive “any other compensation than their salaries, under any name or pretence whatever, for the discharge of any duty pertaining to their offices.” (1 Starr & Cur. Stat. page 708; Hall v. Hamilton, 74 Ill. 437). In 1879 Circuit judges did not have the privilege of taking said per diem for the performance of judicial duties in outside circuits. The reference could not have been to the privilege of holding branch courts, as specified in section 22 of said Act of 1874. The latter section provides, that “judges of the several circuit courts of this State may interchange with each'other and with the judges of the Superior court of Cook County; and the judges of said circuit courts and of the Superior Court of Cook County may hold court or any branch of the court for each other, and perform each other’s duties, where they find it necessary or convenient.” (1 Starr & Cur. Stat. page 707).
It will be observed, that the words, “or any branch of the court,” as applied to circuit courts in the act of 1874, are omitted from the act of 1879 which applies to county courts, although the similarity in the phraseology of the two acts indicates, that the latter was substantially a copy of the former with the exception of the words so omitted. The omission of these words from the act of 1879 shows, that the legislature did not attempt to confer upon the county judges of the several counties the power to hold branches of their respective courts for each other. The provision in the act of 1874 in reference to branch courts evidently had its origin in the peculiar provisions of the constitution of 1870 in reference to the Superior Court of Cook County which before 1870 consisted of three judges, and the circuit court of Cook County which by the constitution was made to consist of five judges. (Cons. Art. 6, secs. 23, 24; Jones v. Albee, 70 Ill. 34). Section 24 of article 6 of the constitution says of the judges of said Circuit and Superior courts of Cook County: “Each of them may hold a different branch thereof at the same time.” Hence the decisions of this court as to the right of the judges of the Circuit and Superior Courts of Cook County to hold branches of their respective courts for each other, and as to the right of the judges of other circuit courts in the State to hold branches of said Circuit and Superior Courts of Cook County for the latter judges, have no application to judges of the county courts of the State. The first section of the Act of May 3,1873, which authorized certain judges to hold branch courts at the “request” of each other, and which is referred to in Jones v. Albee, supra, and other cases, was repealed in 1874, and said section 22 above quoted was evidently intended as a substitute for it. (Rev. Stat. 1874, page 1045; Harvey v. Van DeMark, 71 Ill. 117; Scott v. White, id. 287; Hall v. Hamilton, supra; Bradley v. Barbour, 74 id. 475 ; Waller v. Tully, 75 id. 576; Reitz v. People, 77 id. 518; Courson v. Browning, 78 id. 208; Owen v. Stevens, id. 462; Brown v. Rounsavell, id. 589; Wadhams v. Hotchkiss, 80 id. 437; Morgan v. Corlies, 81 id. 72.
By an act of the legislature passed on April 10, 1885, it was provided, “that in case of the absence, death, resignation, or inability of the judge of a county or probate court of any county, any county or probate judge may hold such county or probate court and perform all the duties of the judge thereof until the return of such judge, the appointment or election of his successor, or until the disability to act ceases.” (3 Starr & Our. Stat. page 330). Prom the provision that, in case of the absence of a county judge, another county judge may hold his court and perform his duties until his return, the implication is clear that the right of such other county judge to hold the court and perform the duties ceases upon the return of the absentee. Hence, both cannot hold court in the same county at the same time. Therefore, I cannot resist the conclusion, that the judge of thé county court of DuPage county could not sit in Cook County as judge of the county court of Cook County and try this assessment proceeding, if, at the same time, the judge of the county court of Cook County was holding his court and transacting the business thereof.
The question then arises whether the judge of the county court of DuPage county erred in overruling any of the motions, objections or pleas made and filed in the court below, which sought to question his right to sit in the case. In the plácito, at the beginning of the record is the following entitlement: “Pleas before the Hon. George W. Brown, County Judge of DuPage County, Illinois, presiding as County Judge of Cook County in the absence and at the request of the Hon. Frank Scales, sole presiding Judge of the County Court of Cook County,” etc. But on July 19,1892, before the hearing of the objections to the confirmation of the assessment began,.some of the property owners objected to the county judge of DuPage County sitting to try the case, and supported the objection by a sworn affidavit showing that the county judge of Cook County was at that very time actually engaged in hearing causes in his court in the same building in Cook county where the county judge of DuPage county was proceeding to hear this assessment proceeding, and that the two judges were holding court in rooms fronting on the same hall-way and only about one hundred feet apart. The objection was in the nature of a motion to dismiss, and was so treated by the parties, and is so spoken of in the bill of exceptions. It was not exactly a motion to dismiss for want of jurisdiction, because the jurisdiction of the county court of Cook county was not questioned, and it was not claimed that the county court of DuPage county was in session. The objection was to the right of the sitting judge to exercise the powers of the county Court of Cook County. The facts stated in the affidavit, showing his incompetency to sit, do not seem to have been contradicted, and must be assumed to have been true. Hence, the motion must have been overruled, either upon the ground that the facts stated in the affidavit did not show a want of power in the sitting judge to try the case, or upon the ground that the objection was not presented in the proper mode, or at the proper time. If the views already expressed are correct, it would follow, that the facts set up in the affidavit did show a want of power; and it was error to overrule the objection or motion, if the ground, upon which the power to act was denied, was presented at the proper time and in the proper way.
The objection was certainly made as soon as it could be made. All proceedings prior to the hearing had been in the county court of Cook County, and it could not be known until the hearing began, that an outside judge would preside. If the objection be regarded as a motion in the nature of a motion to dismiss for want of jurisdiction, it could be made at any time, because, if the affidavit was true, there was an absolute want of power to take any action at all and, therefore, a failure of jurisdiction both as to the subject matter and the parties. (Stoughton v. Mott, 13 Vt. 175; Wildman v. Rider, 23 Conn. 172; 12 Am. & Eng. Ency. of Law, page 309).
While the better and more regular practice in an ordinary suit would be to present the facts stated in the affidavit by a plea, yet objection to the jurisdiction may be taken by motion to dismiss the suit; (Nazro v. Cragin, 3 Dillon, (U. S.) 474; Gormly v. McIntosh, 22 Barb. (N. Y.) 271; Waterman v. Tuttle, 18 Ill. 292; F. & M. Ins. Co. v. Buckles, 49 id. 482; 12 Am. & Eng. Ency. of Law, page 309); especially in this assessment proceeding where no answer or plea is contemplated, or required to be filed. (Goodwillie v. City of Lake View, 137 Ill. 51). The objection here made to the right of the presiding judge to sit in the case does not come strictly within the class of objections to the confirmation of the report, which are referred to in section 30 of article 9 of the City and Village Act. (1 Starr & Cur. Stat. page 498). But if the objection must be governed by said section 30, as is contended by counsel for appellee, the affidavit filed on July 19 may be regarded as a written statement of the objection, as well as a sworn statement of the facts upon which the objection was based. This being so, such written objection took the place of a former pleading, (Goodwillie v. City of Lake View, supra), and should have been treated as having the effect of a plea in abatement under the application' of the strict rule, that such a plea is necessary where the want of jurisdiction over the subject matter does not appear upon the face of the proceedings, but is only made to appear aliunde by the proof of an outside fact. (F. & M. Ins. Co. v. Buckles, supra).
It appears, however, that on November 14,1892, before the hearing before the jury began, some of the property owners did file a formal written objection, and others a formal plea to the jurisdiction, setting up the same facts as were stated previously in the affidavit, but .the plea was stricken from the files, and the objection was overruled. It was not necessary that the plea should be sworn to. Under our statute, pleas in abatement, which go to the jurisdiction of the court, are not required to be sworn to. (1 Starr & Cur. Stat. page 177; Howe v. Thayer, 24 Ill. 246). Nevertheless, some of the property owners afterwards on November 26, 1892, before the hearing before the jury was as yet entered upon, filed a formal plea setting up the same facts, which was verified by oath and signed by each of the objectors therein named. This verified plea was entitled to the same force and effect as the affidavit of July 19, but no action is shown by the bill of exceptions to have been taken by the court in reference to it, although one of the reasons filed in support of the motion for a new trial was, that the court refused to sustain, and overruled said plea of November 26.
Why the particular property owners filing this plea should have been granted a new trial and the others refused one, it is difficult to understand. So far as can be discovered, every reason, urged in favor of a new trial, applied to the latter as well as to the former. The affidavit in support of the motiou for a new trial, showing that, on the day when the judge of the county court of DuPage couuty commenced the hearing of this cause in the court house in Cook county, the judge of the county court of Cook County was holding his court in another room on the same floor in said court house, was filed on behalf of all the property owners.
The pleas filed by one or more property owners were nothing more than written objections in this proceeding, and hence any erroneous ruling in reference thereto inured to the benefit of all the property owners under the stipulation, made by the parties and recognized by the court, “that all objections and motions and exceptions made and taken on behalf of any one objector are made and taken on behalf of all the objectors during the trial of this cause.”
So far as the question of the waiver of objections to the trial of the cause by the judge of the county court of DuPage County after the hearing before the jury began on November 26 is concerned, it may be said that there could be no such waiver. If the view here presented is correct, the presiding judge had no more power to sit than if he had been a member of the bar, or any other person without official position. Jurisdiction cannot be given by consent to an individual who is not a judge. (Hoagland v. Creed, 81 Ill. 506; Bishop v. Nelson, 83 id. 601; Cobb v. People, 84 id. 511; Andrews v. Wheaton, 23 Conn. 112). Jurisdiction over the subject matter cannot be conferred upon a court by consent of parties, nor can want of it be waived. (Leigh v. Mason, 1 Scam. 249 ; Beesman v. City of Peoria, 16 Ill. 484; Peak v. People, 71 id. 278).
The recital in the placita cannot be regarded as conclusive in this case. All the proceedings hereinbefore referred to are set out in the bill of exceptions. In Brown v. Rounsavell, 78 Ill. 589, it appeared from the placita in the record that, in the trial of a case in the Circuit Court of Cook County, the five judges, of which that court was then composed, were present and sitting together with a judge of the third judicial circuit as assistant judge; and it was there held that, inasmuch as the bill of exceptions showed the trial to have taken place before one Circuit judge, the judgment would not be vitiated by a defect of form in the placita. (Owen v. Stevens, supra.)
If the placita in this case had left out the words, “in the absence * * * of the * * * sole presiding judge of the county court of Cook County,” it would have been presumed that the judge of the County Court of DuPage county was presiding because of such absence. These words were not indispensable. (Reitz v. People, 77 Ill. 518 ; Morgan v. Corlies, 81 id. 72). But the presumption can be rebutted by proof. The presumption is indulged, when nothing to the contrary is shown. (Scott v. White, 71 Ill. 287). It is overcome when the contrary appears. Therefore the not indispensable recital of absence may be shown to be incorrect. The bill of exceptions when signed and filed is a part of the record, and while it may not be resorted to for the purpose of supplying the defect where there is no placita at all, it may yet furnish the evidence that the recital in a placita is incorrect. (P. M. L. Co. v. City of Chicago, 56 Ill. 304; Harvey v. Van DeMark, 71 id. 117). The object sought to be reached in this case was sought to be reached by motion sustained by afiidavit in Waller v. Tully, 75 Ill. 576 ; and while we there affirmed the action of the court below in denying the motion, it was upon the broad ground that the presiding judge had the power to sit, and not because the mode of presenting the question was improper.
For the reasons thus stated it seems to me, that the court below erred in overruling the objection made on July 19, and also in overruling the motion for a new trial as to these appellants.