
    (No. 24576.
    Christian Rau et al. Appellees, vs. The Village of Warrensburg, Appellant.
    
      Opinion filed October 13, 1938.
    
    Evans & Kuhle, for appellant.
    John R. Fitzgerald, Robert N. Patterson, and Elbert S. Smith, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court:

Christian Rau, Phillip Bauman and Louisa Bauman, on February 9, 1934, filed a petition in the circuit court of Macon county seeking the disconnection of three separate parcels of land owned by them from the limits of the village of Warrensburg. The petition was filed conformably to the provisions of an act effective July 13, 1933, providing for the disconnection of agricultural land from cities, towns and villages. (Laws of 1933, p. 220.) Personal service was had upon the defendant, the village of Warrensburg, by leaving a copy with the president of its board of trustees. Defendant did not challenge the constitutionality of the act of 1933 or interpose any other defense to the action. For the failure to plead it was defaulted. Evidence was heard by the court and, on March 20, 1934, a judgment was entered disconnecting each of the three tracts from the territory embraced within the corporate limits of the defendant. Upon payment of costs of the suit, the cause was stricken from the docket. No appeal was prosecuted by defendant. On November 27, 1934, more than eight months after the judgment was entered, the defendant filed a motion to re-docket the cause in the circuit court. Its motion was allowed and the cause re-docketed. Thereafter, on January 9, 1935, defendant filed a petition to vacate the judgment of March 20, 1934, alleging that the circuit court acquired no jurisdiction over the parties or subject matter because the statute upon which the proceeding was predicated had been subsequently held unconstitutional. (Forsythe v. Village of Cooksville, 356 Ill. 289.) From the order of October 7, 1937, denying defendant’s petition to vacate the judgment an appeal has been prosecuted directly to this court.

Although the judgment of March 20, 1934, was a final and appealable order between the parties defendant did not seek to set aside the judgment until after the expiration of the term of court at which it was rendered. Defendant now contends that the judgment in favor of plaintiffs was void because the Disconnecting act of 1933 was unconstitutional and, hence, open to collateral attack on the motion to vacate. To sustain its contention defendant advances the argument that an unconstitutional statute is not a law, confers no rights, imposes no duties, affords no protection, and is, in legal contemplation, as inoperative as though it had never been enacted. The issue presented by the contention and the supporting argument is the validity of the judgment of March 20, 1934, and not a question involving the construction of the constitution.

The cause will be transferred to the Appellate Court for the Third District.

¿ Cause transferred.  