Allen v. City of Chicago

• Decision Date: 24 October 1898
• Citation: 52 N.E. 33,176 Ill. 113
• Parties: ALLEN et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

176 Ill. 113

52 N.E. 33

ALLEN et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, Cook county; R. W. Clifford, Judge.

Proceedings by the city of Chicago to spread and confirm an assessment. Objections were filed by Ira W. Allen and others, which were overruled; and, from judgment for the city, they appeal. Affirmed.

Hillis & McCoy, for appellants.

Charles S. Thornton, Corp. Counsel, and John A. May, for appellee.

PHILLIPS, J.

This is a supplemental proceeding, brought under section 53 of article 9 of the city and village act, to spread and confirm an assessment to raise the amount required to pay the condemnation awards theretofore made in the same cause for property to be taken or damaged for opening Sixtieth street, from State street to Wentworth avenue, in Chicago. The proceeding was in the circuit court of Cook county. Upon application for confirmation of this assessment, many property owners appeared and objected. When the case was called for trial, a motion in writing, verified by affidavit, to dismiss the supplemental petition and cancel the assessment as to objectors' property, was made prior to the calling of the jury. Much documentary evidence was introduced in support of the motion. After consideration, the court overruled the motion temporarily, with the expressed intention of considering the same later with the motion for a new trial. Counsel for objectors excepted.

By the verified motion to dismiss, and the documentary evidence in support thereof, it appears that, beginning in 1884, and extending down to the present time, there has been a practically continuous effort made by the municipality having control of the locality in question to open Sixtieth street from State street to Wentworthavenue. This effort has manifested itself in three different proceedings, pursuant to separate ordinances, all providing for making the same improvement, in the same way, over the same route, and taking precisely the same property therefor. Pursuant to an ordinance passed in 1884 by the common council of the town of Lake, a municipal corporation having control of streets therein (which municipality has since become annexed to the city of Chicago), proceedings were commenced in the superior court of Cook county for condemnation for purposes of a street. An amendatory ordinance was passed by the town of Lake in 1886. Under these ordinances, condemnation proceedings were had, and judgments entered, in 1886 and in 1889. A supplemental petition was filed; the assessment was spread; and the owners were ruled to file objections; but no judgment of confirmation was entered. On June 7, 1889, Marie Grieshaber filed a bill in the superior court of Cook county asking for an injunction to restrain the town of Lake from taking any further proceedings in that condemnation suit. On July 15, 1890, the petitioner's attorney entered an order dismissing the condemnation proceedings. On the same day that this latter order was entered, a decree was entered on the bill for injunction as prayed for, enjoining the town of Lake, and the city of Chicago, its successor, from doing any act or taking further proceedings in the condemnation proceeding.

The city of Chicago having become the corporate successor of the town of Lake, and succeeding to all its rights and duties on July 15, 1889, it, on July 18, 1890, pursuant to an ordinance passed January 27, 1890, commenced condemnation proceedings to open the same street; and judgments were entered in 1892 and in 1893, in the circuit court of Cook county. Certain questions were raised in these proceedings, which were decided by this court in Chicago, R. I. & P. Ry. Co. v. City of Chicago, 143 Ill. 641, 32 N. E. 178, and 148 Ill. 479, 36 N. E. 72. These two cases arose in the second condemnation proceeding. It was there substantially held that a corporation clothed with power to exercise the right of eminent domain cannot be permitted to exercise that right by instituting proceedings for a judicial ascertainment of compensation to be paid, and, if dissatisfied with the amount found, dismiss the proceeding, and, by a new petition, again submit the question to other and successive juries, until a verdict is returned satisfactory to the municipality. That rule was followed in Pearson v. City of Chicago, 162 Ill. 383, 44 N. E. 739, and in Illinois Cent. R. Co. v. City of Champaign, 163 Ill. 524, 45 N. E. 120. In neither of those cases was the decree in the injunction proceeding, and its effect, before the court, and each had reference only to the second condemnation proceeding.

On January 8, 1894, an ordinance was passed by the city of Chicago to open Sixtieth street from State street to Wentworth avenue; and a petition to condemn was filed in the circuit court of Cook county on March 29, 1894; and a judgment of condemnation was had on November 15, 1894. After that judgment of condemnation, this supplemental proceeding was filed, under section 53 of article 9 of the city and village act (Rev. St. p. 240), which is as follows: ‘Sec. 53. Whenever any city or village shall apply to any court for the purpose of making just compensation for property taken or damaged by such proceedings as are authorized by this act, such city or village may file in the same proceeding a supplemental petition, praying the court to cause that an assessment be made for the purpose of raising the amount necessary to pay the compensation and damages which may be or shall have been awarded for the property taken or damaged, with the costs of the proceeding. The said court shall have power, at any time after any such supplemental petition shall have been filed, to appoint three commissioners to make such assessment, and to ascertain, as near as may be, the costs incurred to the time or such appointment, and the probable further costs of the proceedings, including therein the estimated costs of making and collecting such asssessment, and shall direct such costs to be included by such commissioners in making said assessment. Like proceedings in making said assessment shall be had, and the assessment shall be made, collected and enforced in the same manner, as near as may be, as is provided in this article in other cases.’ In pursuance of this section, the court, having estimated the costs already incurred and probable further costs, entered an order appointing three commissioners to determine this question, who, after due investigation, made their report in the form of an assessment roll, which was duly returned and filed. Upon the filing of such assessment roll, about 175 persons appeared and filed objections to such report.

Certain objections of appellants are to the effect that the ordinance of 1894, and the petition thereunder, which are the basis of this supplemental proceeding, are void, because they attempt to treat as a nullity the first condemnation proceeding, and substitute another therefor; that the circuit court had no power to hear and determine this case, because the superior court acquired jurisdiction of the subject-matter, which is still pending in that court, and because the order attempting to dismiss that proceeding was a nullity; that that prior condemnation judgment is in full force and effect, and is a bar to this attempted condemnation; that the condemnation judgment upon which this supplemental proceeding is based is void, because the court was without jurisdiction of the persons of nine named known defendants when it rendered judgment in the condemnation proceeding, which said unserved and nonappearing defendants are James Woodbury, William H. Jeffers, Patrick Britton, Maria Grieshaber, John M. Goodenough, Isabella Mott, Harriet B. Wilson, William H. B. Woods, and Thies J. Lefens, trustee. These constituted the legal objectors. Testimonywas heard in reference to these objections, and, among other evidence, appellee offered the decree in the case of Grieshaber against the city of Chicago, to which the appellants objected, and, on their objection being overruled, they excepted.

The appellants offered in evidence the condemnation proceeding had prior to that in the case on trial, and the appellee had the right to have in evidence the decree enjoining further proceedings under the prior proceeding. The fact that appellants were not parties to that decree does not affect the effect of the decree. Its effect was to prevent action on the part of the appellee under that proceeding; and, if action was enjoined thereunder, that proceeding would not be a bar to another and subsequent proceeding by the appellants by the adoption of an ordinance and petition for condemnation. A supplemental proceeding under section 53 is collateral to the condemnation judgment, which is final and conclusive as to the parties thereto until it is reversed or vacated. Goodwillie v. City of Lake View, 137 Ill. 51, 27 N. E. 15;Gage v. City of Chicago, 146 Ill. 499, 34 N. E. 1034;Newman v. City of Chicago, 153 Ill. 469, 38 N. E. 1053;Harris v. City of Chicago, 162 Ill. 288, 44 N. E. 437. Appellants, who were parties duly served or appearing to that proceeding for condemnation, must be held to have waived all objections which could have been made to that judgment of condemnation. They cannot be raised in a collateral proceeding by one who was duly served or appeared in the original proceeding. The claim that the judgment of condemnation was a nullity cannot be sustained, as all action under the prior proceeding was enjoined. It was not error to overrule the first three objections.

The fourth objection, that James Woodbury was not served with process and made a party to the petition, is true. Appellants' abstract, however, shows that by an amendment to the petition filed May 9, 1894, Mary A. Woodbury, F. A. Woodbury, and Ella W. True, who were the widow, son, and daughter of James Woodbury, were served with process, and appeared. Patrick Britton was not served, but his son...