Sanitary Dist. of Chicago v. Chapin

• Citation: 80 N.E. 1017,226 Ill. 499
• Parties: SANITARY DIST. OF CHICAGO v. CHAPIN.
• Decision Date: 18 April 1907
• Court: Supreme Court of Illinois

226 Ill. 499

80 N.E. 1017

SANITARY DIST. OF CHICAGO

v.CHAPIN.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Condemnation proceedings by the Sanitary District of Chicago against Charles A. Chapin. From an order dismissing the suit, petitioner appeals. Affirmed.

Erasmus C. Lindley (John C. Williams, of counsel), for appellant.

Knight & Hoyne and Wilson, Moore & McIlvaine, for appellee.

CARTWRIGHT, J.

On July 23, 1902, the appellant, the Sanitary District of Chicago, filed in the circuit court of Cook county its petition for the ascertainment of compensation to be paid for several tracks of land for enlarging its drainage channel, including several lots designated as track 178, owned by the appellee, Charles A. Chapin, a resident of Chicago, in said county. A summons was issued against appellee, which was returned on September 16, 1902, ‘Not found.’ No alias summons was issued, nor any other step taken to bring appellee into court, or to further prosecute the suit as to said tract, until November 13, 1906, something more than four years and three months after the petition was filed, when an alias summons was issued, which was served on the appellee on November 15, 1906. He appeared on December 19, 1906, and moved the court to dismiss the petition as to said tract for want of prosecution. The motion was supported by an affidavit setting forth that at the time of filing the petition the lands adjacent to said tract were used principally for purposes of storage and lumber yards and junk purposes; that since said time the adjacent lands had been greatly improved by large wholesale jobbing and general mercantile buildings, and the railroad facilities had been greatly increased, and by reason of such conditions the market value of the property had very greatly enhanced since the filing of the petition. It was assumed by all parties that under the law the value would be fixed in this proceeding as of the date when the petition was filed, and the position of the appellee was that he would be wronged by taking his propertyand having its value fixed at such date by reason of the inexcusable delay of the petitioner. His counsel offered, in case the petition should be dismissed and a new proceeding instituted, to enter his appearance and consent to an immediate trial, and the court announced that the motion would be denied, if appellate would stipulate that the value of the property should be fixed as of the date when the summons was served on appellee. The appellant refused, and insisted upon its right to have the value fixed as of July 23, 1902, and filed an affidavit stating, in substance, that it had acquired title to much of the property sought to be condemned without a trial and had tried some cases, but presenting no reason for the long and unreasonable delay in bringing appellee into court or proceeding with the case as to his property. The court thereupon sustained the motion and dismissed the petition for want of reasonable diligence in its prosecution.

A court may dismiss a suit for the failure of plaintiff to prosecute it with due diligence, where no sufficient excuse is presented, and this power exists independently of any statute. 14 Cyc. 444. The question here is whether that power was properly exercised under the circumstances of this case. Appellant insists that it was not, and relies upon various decisions in actions at law, where it was held that the court had no right to dismiss the suits, as in White v. Hogue, 18 Ill. 150, where it was held that a court could not dismiss a suit in attachment for a failure to file a declaration at the return term without a rule on the plaintiff to file the declaration; and Delano v. Bennett, 61 Ill. 83, where it was held that a court may dismiss a case when called for trial for want of prosecution, if the plaintiff does not appear, but, if the parties appear and the defendant insists upon a trial, the court cannot dismiss the case for want of prosecution, and the plaintiff must elect to take a nonsuit or let the case go to trial; and Seavey v. Rogers, 69 Ill. 534, where the case was not at issue, and the plaintiff did not appear, and it was held that the proper course was for the defendant to take a rule on the plaintiff to answer the pleas, and on failure to do so for the court to dismiss for want of prosecution. It is contended that by analogy to these cases the court could not dismiss the petition for failure to prosecute with due diligence when the petitioner was in court willing to proceed, although there had been unreasonable delay in the prosecution. None of the cases cited go to the extent of allowing plaintiff to do nothing for several years and answer a motion to dismiss for want of prosecution by saying that he is now ready to proceed. But this proceeding is not governed by the ordinary rules of practice. The court ought in any case to be able to see that justice is done. And this case is different from the ordinary suit at law, in the fact that the statute contemplates a speedy trial, and for that purposes provides for presenting a petition to a judge in vacation to obviate delays detrimental to the public and the parties. Bowman v. Venice & Carondelet Railway Co. 102 Ill. 459,Leibengut v. Louisville, New Albany & St. Louis Railway Co. 103 Ill. 431;Centralia & Chester Railroad Co. v. Rixman, 121 Ill. 214, 212 N. E. 685. The proceeding is a summary one regulated by statute, and not governed, either as to pleadings or practice, by the rules of the common law. Sweeney v. Chicago Telephone Co., 212 Ill. 475, 72 N. E. 677. In Winkelman v. City of Chicago, 213 Ill. 360, 72 N. E. 1066, it was said to be the duty of a petitioner instituting a suit like this one to prosecute it with diligence, and it was held that Winkelman had a right of action against the city of Chicago for damages resulting from long delay in the trial of the case and a material decrease in the value of the property in the interim, when the proceeding was finally abandoned. While it was considered to be the duty of a defendant desiring a speedy trial to ask the court to speed the cause, the defendant in this case was not...