dissenting:
The motion to dismiss the writ of error is based upon the ground, that the plaintiffs in error failed to file with the clerk of this court the affidavit required by section 96 of the “Act concerning local improvements,” approved June 14, 1897. (Sess. Laws of 1897, p. 134). Section 96 provides, that writs of error from the Supreme Court of the State may issue upon any final judgment of any court entered in the proceedings, provided, for by the act, on the application of the owners or parties interested in the property affected thereby, as shown by the record, etc.; but said section 96 contains two provisos. The second proviso is, “that in .every case there shall be filed with the clerk of the Supreme Court, with the application of such writ, an affidavit by the plaintiff in error, or his agent, setting forth the time when such warrant, as to such property, was returned delinquent, or so certified; and further setting forth that the person to whom such notice of the filing of assessment roll as to such property, as shown by the record, did not receive the same, or otherwise learn of the pendency of the proceedings for the confirmation of said assessment until less than ten days before the entry of default against his said property in the court below.” It will be noticed, that the person referred to in the last clause of the proviso is not properly described by reason of the omission of the words, “was sent;” after the words, “as shown by the record.” If the omitted words be supplied, the proviso conditions the right of the plaintiff in error to have the writ of error issued upon the filing of the affidavit therein mentioned. Evidently, the proviso refers back to the requirement in regard to the notice, which is found in section 41 of the act.
Section 41 provides, that “notice shall be given of the nature of the improvement, of the pendency of said proceeding, of the time and place of filing the petition therefor, of the time and place of filing the assessment roll therein, and of the time and place at which application will be made for confirmation of the assessment, the same to be not less than fifteen days after the mailing of such notices. Such notices shall be sent by mail postpaid to each of the said persons paying the taxes on the respective parcels during the last preceding year in which taxes were paid, at his residence as shown in the assessment roll, or, if not shown, then to such person so paying the taxes, directed generally to the city, village or town in which said improvement is proposed to be made. Snch notice shall state the amount assessed to the person to whom the same is directed for the improvement proposed, the total amount of the cost of said improvement, and the total amount assessed as benefits upon the public. An affidavit shall be filed before the final hearing showing a compliance with the requirements of this section,” etc.
By section 41, notices are required to be sent by mail not less than fifteen days before application is made for confirmation of the assessment; and an affidavit, that said notices have been so sent, must be filed before the final hearing.
The effect of the second proviso to section 96 is, that the plaintiff in error, as a conditipn precedent to the issuance of a writ of error, must file with the clerk of the Supreme Court an affidavit, setting forth that the person, to whom the notice aforesaid was sent, did not receive the same, or otherwise learn of the pendency of the proceedings for the confirmation of said assessment until less than ten days before the entry of default against his property.
It will be observed, in the first place, that the affidavit mentioned in the last clause of the proviso has reference only to judgments by default, although the requirement of the first clause of the proviso is, that the affidavit shall be filed in “every case,” that is, in a case where the judgment is rendered after appearance is entered, and objections are filed and overruled, as well as in a case where there is no- appearance, and default is taken. The condition thus imposed, as a preliminary to the issuance of a writ of error, is a very remarkable one.
The affidavit is required to be filed with the clerk of the Supreme Court and with the application for the writ of error. It must appear from the affidavit, that the person, seeking a review by writ of error of the judgment by default against his property, not only never received the notice which is required to be sent to him by mail, but, also, that he never, in any other way, learned of the pendency of the proceeding's for confirmation of the assessment until less than ten days before the entry of default. Unless he can swear that he never received the notice sent by mail, or in any other way learned of the pendency of the proceedings, he cannot obtain a writ of error for the purpose of reviewing the judgment. The facts, .which the affidavit is thus required to set up, are' not facts which appear, or can appear, in the record of the lower court, showing the proceedings therein.
Under section 41, when there is filed in the lower court an affidavit that the notices have been sent by mail at the required time, and that the other requirements have been complied with, the court below has jurisdiction to render judgment. The affidavit of the sending of the notices is the proof upon which the trial court acts. Proof of the mailing of notices properly addressed is prima facie evidence that they were received by the parties to whom they were addressed. (Bickerdike v. Allen, 157 Ill. 95; Meyer v. Krohn, 114 id. 574; Young v. Clapp, 147 id. 176). The court below is authorized, when the affidavit of the mailing of the notices, as required by statute, is filed, to assume that the notices have been received by the property owners. The question, whether they were actually received as a matter of fact, is a question, which, under the statute, cannot arise upon the record in case of a judgment by default. Therefore, the party applying for a writ of error, must swear to a fact which is not in the recbrd sought to be reviewed, but which is a new, independent and outside fact.
It is not sufficient, however, that the party applying for the writ did not receive the notice mailed to him. He must swear, that he never otherwise learned of the pend-ency of the proceedings. If a property owner, ten days or more before the entry of default against his property, should happen to hear upon the street that assessment proceedings were pending against it, he could not procure a writ of error under this statute, because he could not conscientiously swear that he had not learned of the pendency of the proceedings against his property. It is the plain meaning of the proviso, that, if he had learned of the pendency of the proceedings at the time specified, he should have gone into the trial court, and entered his appearance, and filed his objections to the entry of judgment. It has generally been supposed, that it is the duty of the plaintiff in a lawsuit to have process issued and served upon the defendant. No man is obliged to go into court and enter his ajrpearance, because he has learned that a suit is pending against him. It is time enough for him to do so, when such process as the law requires, has been served upon him. The second proviso to said section 96 requires the property owner, against whose property judgment by default has been entered, to submit to the loss of the right to a review of the judgment by writ of error, as a penalty for not going into court and entering his appearance when he has learned that proceedings are pending against his property. According to the terms of this proviso, the judgment by default, rendered against the property, may be absolutely void for want of jurisdiction in the court rendering it, and yet, unless the owner can make the affidavit required by the proviso, he will be without power to have the judgment reviewed by writ of error.
It is true that no man has a vested right in a remedy, and that, while the writ of error is, in most cases, a writ of right at common law, yet it may beTimited or regulated by statute, unless the constitution prohibits. But the constitution of this State recognizes the right of litigants to take their cases to the Supreme Court by writ of error, because section 8 of article 6 of the constitution says that “appeals and writs of error may be taken to the Supreme Court, held in the grand division in which the cause is decided, or, by consent of the parties, to any other grand division.” Section 19 of article 6 of the constitution provides, that “appeals and writs of error shall be allowed from the final determination of county courts, as may be provided by law.” The present assessment proceeding was instituted in the circuit court, and the judgment of confirmation here under consideration was rendered by the circuit court. '
In Unknown Heirs of Langworthy v. Baker, 23 Ill. 484, we said: “A writ of error is a writ of right by the common law, and lies in all cases, civil and criminal, except capital cases, but can, of course, be regulated by statute. It is admitted that a writ of error cau be prosecuted to the circuit court to bring up its proceedings for review in.the Supreme Court. That is expressly provided for by statute, and without the statute it could be prosecuted as a writ of right belonging to all persons, unless expressly inhibited by statute.” In Schlattweiler v. County of St. Clair, 63 Ill. 449, we said: “The right to appeal or to sue out a writ of error is a constitutional right, and must be allowed when claimed.” In Haines v. People, 97 Ill. 161, we held that the right tó a writ of error exists independently of any statutory or constitutional provisions by force of the common law in all cases, in which the jurisdiction of the inferior court is exercised according to the course of the common law; and that, in the latter class of cases, the writ of error lies to the circuit courts, whether an appeal is given or not, the appeal, when given, being regarded as merely cumulative.
But while it may be admitted that the issuance of the writ may be regulated by statute, as was held in Peak v People, 76 Ill. 289, yet it cannot be unreasonably restricted by statute law. The remedy cannot be entirely swept away, or rendered utterly ineffective by an unreasonable legislative enactment. (2 Ency. of Pl. & Pr. p. 15, and cases referred to in notes; Branson v. Studebaker, 133 Ind. 152; People v. Richmond. 16 Col. 281). In Gage v. Stewart, 127 Ill. 207, we said: “A law which would deprive the party of all legal remedy, or impose impossible conditions to the assertion of his right, would necessarily be void.” Section 2 of article 6 of the constitution provides, that the Supreme Court of the State “shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases.” When a writ of error is issued by this court, it is issued in pursuance of the exercise by the court of its appellate jurisdiction. The writ is issued from a court of appellate jurisdiction, directed to the judge of a court of record, requiring him to remit to the Appellate Court the record of the action before him, in which a final judgment has been entered, in order that examination may be made of certain errors alleged to have been committed, and that the judgment may be corrected, reversed or affirmed, as the case may require. (7 Ency. of Pl. & Pr. p. 820). The object of the writ is to bring up for consideration errors committed by the court below. Appellate jurisdiction is the authority of the superior tribunal to reverse, correct or affirm the decisions of the inferior tribunal where the cases are brought before the superior court pursuant to law. The record is the source, from which appellate tribunals obtain their knowledge of the facts involved in the controversy between the parties, and of the questions upon which it is their duty to pronounce judgment. (Elliott on Appellate Procedure, secs. 16, 186, 187). The record imports absolute verity, and cannot be varied, contradicted or affected by extrinsic evidence; nor can the parties make a record by agreement or by the filing of affidavits. (Ibid.) As the writ of error is issued in the exercise of appellate jurisdiction, and as such appellate jurisdiction can only be exercised upon the facts and questions presented by the record, new and outside facts presented by affidavits have no place in an appellate tribunal in connection with a writ of error.
The exercise of original jurisdiction by this court is limited to cases relating to the revenue and to mandamus and habeas corpus. The legislature has no power to alter the nature of the jurisdiction and duties of the Supreme Court of the State. (People v. Richmond, supra). It cannot clothe the Supreme Court with original jurisdiction in cases where the power to exercise such original jurisdiction is not conferred by the constitution. By the proviso now under consideration, an affidavit, requiring outside facts, not found in the record, to be set up therein, must be filed with the clerk of this court. Who is to determine the sufficiency of the affidavit, and whether its contents and statements are such as are required by the statute? Whether the issuance of the writ is a mere ministerial act to be performed by the clerk of the court, or whether •its Issuance is a judicial function to be exercised by the court itself, it is not necessary to inquire. In either case, the proviso requires the consideration of other matters than are presented by the record of the proceedings of the lower court. Therefore, the issuance of the writ under the conditions, prescribed in the proviso in question, is, to a certain extent, the exercise of original, and not of appellate jurisdiction. If a writ of error is issued for the purpose of bringing up for the consideration of this court errors appearing in the record of the lower court, it cannot be said that this court or its clerk can properly consider the question, whether the party, applying for the writ, received the statutory notice, above referred to, by mail or not, or the question, whether said party, in any other way, learned of the pendency of the proceedings for the confirmation of the assessment; because these questions in no way relate to any errbr appearing in the record of the proceedings of the lower court.
Therefore, the proviso in question not only imposes impossible conditions upon the assertion of the right to a writ of error, but it seeks to impose upon this tribunal duties, properly belonging to a court of original jurisdiction, in a matter where appellate jurisdiction only is invoked. It follows that the second proviso of said section 96 in invalid.
Accordingly, the failure of the plaintiffs in error to file the affidavit, required by the proviso, constitutes no sufficient ground for dismissing the writ of error; and, therefore, the motion to dismiss the writ ought to be overruled.
Mr. Chief Justice Boggs does not concur.