People ex rel. Cusick v. City of Chrisman, 208 Ill. App. 19 (1917)

Oct. 11, 1917 · Illinois Appellate Court

208 Ill. App. 19

The People of the State of Illinois ex rel. J. Fay Cusick, Appellant, v. City of Chrisman, Appellee.

(Not to be reported in full.)

Abstract of the Decision.

1. Mandamus, § 6*—what is nature of writ of and right to. A writ of mandamus is not a writ of absolute right, but the judicial discretion of the court controls the granting of it, even where a clear legal right to the writ appears.

2. Mandamus, § 1*—when wit of will not he granted. A writ of mandamus will not be granted where such action will not promote substantial justice.

Appeal from the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).

Affirmed.

Opinion filed October 11, 1917.

Rehearing denied December 1, 1917.

Statement ‘of the Case.

Action of mandamus by the People of the State of Illinois on the relation J. Fay Cusick, plaintiff, against the City of Chrisman, defendant, to compel defendant to rebuild a tile, to lay it out properly and to clean it and the gutter and ditch connecting therewith. Defendant answered denying its construction and negligent maintenance of the tile and ditch and averring that it was proceeding under the Local Improvement Law (J. & A, 1388 et seq.) to construct a complete sewer system for the city by special assessment. From a judgment in favor of defendant, plaintiff appeals.

Fred Rhoads and J. Fay Cusick, for appellant.

Dyas & Dyas, for appellee.

* See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Eldredge

delivered the opinion of the cpurt.

3. Mandamus, § 57 ^* —when writ will not he granted to compel city to reconstruct old tile drain and ditch. A writ of mandamus will not be granted to compel a city to reconstruct at considerable cost an old tile drain and open ditch, even though the drain and ditch as maintained are injurious to abutting, owners, where the city is proceeding under the Local Improvement Law (J. & A. t 1388 et seq.), to construct a complete system of drainage in the city which will render the reconstruction of the old drain and ditch useless and needless.

4. Mandamus—when evidence insufficient to warrant writ of. Evidence, in an action of mandamus to compel a city to reconstruct a tile drain and open ditch, examined and held insufficient to warrant the granting of the writ.