lan that Annie M. Nolain left twelve cousins surviving her, whose names were given and who were complainants in the amended and supplemental bill. Cornelius Nolan testified that he had been acquainted with Annie M. Nolain for sixty years and first knew her in her childhood, when she was eight years old and lived on a farm in Hartland, in McHenry county, although he did not see her for a long period of time while she lived in Chicago. He testified that she was never married and gave the names of her father and mother. His knowledge was obtained from declarations of members of the family. In Champion v. McCarthy, 228 Ill. 87, the controversy was whether Henry McCarthy was an heir of John Earl, an illegitimate son of Susan Champion. He claimed to be also her illegitimate son, which would make him a half-brother to John Earl, and, as such, an heir to his estate. It was decided that declarations of Susan Champion, John Earl and a husband of a legitimate daughter of Susan Champion were competent evidence of the relationship. In Jarchow v. Grosse, 257 Ill. · 36, it was held that a requirement there should be other proof than the declarations of the declarant as to the relationship does not apply where it is sought to reach the estate of the declarant himself and not to establish a right through him to the property of others. That was the case here, and the declarations were admissible, although the relationship was not also shown by other evidence. The declarations of Annie M. Nolain being made in her lifetime were necessarily previous to any controversy as to who her heirs would be, since she then had no heirs; and that is also true of the declaration to Cornelius Nolan.

There were two hearings before different chancellors, resulting in the same findings and decree. The evidence in the record now under review is in substance the same as when the cause was considered before, and no reason appears for disturbing the findings and decree.

The decree is affirmed.

Decree affirmed.

(No. 12940.-Reversed and remanded.)

CECILIA THOEMING et al. Defendants in Error, vs. CHARLES A. HAWKINS et al. Plaintiffs in Error.

Opinion filed June 16, 1920-Rehearing denied October 6, 1920.

1. DRAINAGE appeals from classification operate to stay proceedings until disposed of. Appeals from a classification of lands for drainage purposes, when regularly taken within the time fixed by statute and the appeal bonds are accepted and approved by the county clerk, operate as a supersedeas or stay of proceedings until the appeals are disposed of.

2. SAME when proceeding to enforce collection of unlawful assessment is not necessarily void. Where drainage commissioners, who had no knowledge that appeals were taken from the classification of lands, levy an assessment while the appeals remain undisposed of, the assessment is unlawful and the defense that the appeals were pending is available to the land owners on the application for judgment and order of sale, but the proceedings to enforce the collection of the assessment are not necessarily void although subject to be set aside on motion.

3. SAME when land owners cannot apply to court of equity to enjoin collection of assessment. Although the levy of a drainage assessment while appeals are pending from the classification of lands is unlawful, land owners who give no heed to the collector's application for judgment and order of sale, and who do not perfect their appeal from a denial of their motion to set aside the judgment and order of sale, cannot apply to a court of equity to enjoin the collection of the assesssment.

4. EQUITY-equity will not give second opportunity to make defense which was available at law. Where a defense is available at law and there is no sufficient reason for a failure to make it, a court of equity has no power to grant relief against the judgment and will not give a complainant a second opportunity to make his defense.

WRIT OF ERROR to the Circuit Court of Douglas county; the Hon. FRANKLIN H. BOGGS, Judge, presiding.

S. S. DUHAMEL, and DOBBINS & DOBBINS, for plaintiffs in error.

W. T. COLEMAN, EDWARD C. CRAIG, DONALD B. CRAIG, and JAMES C. VANMETER, for defendants in error.

Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:

The record in this case was brought to this court by writ of error and the defendants in error filed pleas of release of the errors assigned. A demurrer to the pleas was sustained, (Thoeming v. Hawkins, 291 Ill. 454,) and thereafter there was a joinder in error, and the cause has been submitted for decision upon the errors assigned.

The nature of the suit and the averments of the bill were stated when the demurrer was sustained, and from the recital of such averments it will be observed that no reason for not interposing a defense in the county court to the application for judgment was stated but the sole reliance for relief in equity against the judgment was the fact that the assessment was levied after appeals had been taken from the classification. Notwithstanding the want of any averment of an equitable defense or any excuse for neglecting to defend against the application for judgment, an answer was filed which denied the appeals alleged were perfected in compliance with the statute, and averred that the complainants deposited the appeal bonds with the county clerk and asked him to put them away and keep them until called for; that the commissioners had no notice or knowledge that the bonds were filed until June 4, 1918; that the complainants had notice of the assessment from the treasurer of the district; that notices of the assessment were mailed to them by the county collector on or about April 10, 1918, and a delinquent list was published as provided by law, by which the county court obtained jurisdiction to render the judgment; that the complainants made no appearance in the county court to object to a judgment until after it had been rendered; that on June 15, 1918, at the same term, they entered their appearance in the county court and moved the court to vacate the judgment, and the county court, after a hearing, overruled their motion, and that they prayed an appeal to this court but did

not perfect the appeal. Based on these averments the answer denied the right of the complainants to any relief in equity against the judgment. There was no amendment of the bill to meet the defense set up in the answer by setting out the grounds on which the alleged defense was rested and making an issue of fact or alleging matter of avoidance so as to subvert the defense, according to the usage and practice in equity pleading. The case has been submitted upon arguments whether the complainants had an adequate remedy at law, which they neglected to present to the county court on the application for judgment but afterward availed themselves of by the motion to vacate the judgment at the same term at which it was rendered.

The evidence established the following facts: The complainants attended the hearing held by the commissioners and objected to the classification of their lands, but the classification was confirmed on October 6, 1917. On October 16, 1917, the complainants filed their several appeal bonds with the county clerk by presenting them to a deputy in the office, who was directed to file them away until called for. No action was taken on the appeals, and the commissioners, having no knowledge that appeals had been taken, levied an assessment on the classification and returned the same to the county collector, who applied for judgment. Notices had been given to the complainants by the treasurer of the district, and notices were also sent through the mail containing a statement of the delinquent assessment and notice was published of the application as required by law. At the same term at which the judgment was rendered the complainants moved the court to set aside the judgment, and in their written motion stated the fact that appeals from the classification had been taken, and that they did not cause any objections to be filed against the application of the county collector because they were informed by their attorneys that nothing was required to be done except the filing of the appeal bonds, which acted as a super

sedeas, and no judgment could be taken against their lands for the delinquent taxes so long as the appeals were pending and undetermined. The motion was denied and an appeal to this court was allowed but was not perfected.

The appeals were regularly taken within the time fixed by the statute, and when the bonds were accepted and approved by the county clerk the matter of the classification of lands was pending in the county court. (Frahm v. Craig Drainage District, 200 Ill. 233.) The appeals operated as a supersedeas or stay of proceedings until the appeals were disposed of. (Smith v. Chytraus, 152 Ill. 664; Cowan v. Curran, 216 id. 598; City of Chicago v. Lord, 281 id. 416.) The commissioners, having no knowledge of the appeals, levied the assessment, which was unlawful, and that defense was available to the complainants on the application of the county collector for judgment. The appeals were not from a judgment of a court, and if they had been it would not necessarily follow that every act in pursuance of a judgment appealed from is necessarily void although subject to be set aside on motion. (Curtis v. Root, 28 Ill. 367; Oakes v. Williams, 107 id. 154; Shirk v. Metropolis and New Columbia Gravel Road Co. 110 id. 661.) The assessment was levied and returned as delinquent, and the county court had jurisdiction to determine every question concerning the legality of the assessment and obtained jurisdiction of the persons in the manner prescribed by the statute, but the complainants gave no heed to the application, because, as they alleged, they were informed that no judgment could be taken against their lands. After the judgment they made their motion to set it aside and proved that the bonds were regularly filed with the county clerk, which, as a matter of law, superseded the classification and made the assessment unlawful. The county court still having jurisdiction over its judgment had power to set it aside and permit the defense to be made, but the fact that the motion was denied did not justify an appeal to a court of