Ayer v. City of Chicago

• Decision Date: 31 March 1894
• Citation: 149 Ill. 262,37 N.E. 57
• Parties: AYER et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

149 Ill. 262

37 N.E. 57

AYER et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from circuit court, Cook county; Frank Baker, Judge.

Petition by the city of Chicago against Frederick F. Ayer, Josephine M. Ayer, Jacob Rogers, and Benjamin Dean, trustees of the estate of James C. Ayer, deceased, for confirmation of a special assessment. Petitioner obtained judgment. Defendants appeal. Reversed.

Thornton & Chancellor, for appellants.

N. W. Robinson, W. E. Thorne, Lockwood Honore, and Adolf Kraus, Corp. Counsel, for appellee.

MAGRUDER, J.

From an order entered herein upon December 10, 1892, it would appear that this was a supplemental proceeding, begun under section 53 of article 9 of the city and village act, for the purpose of making an assessment to raise the amount necessary to pay the compensation and damages theretofore awarded for property to be taken and damaged for opening Homan avenue from West Lake street to West Ohio street in Chicago; but we fail to find anywhere in the record the supplemental petition provided for in said section, and upon which said order purports to be based. The absence of the petition from the record is not referred to by counsel on either side. The order appoints commissioners to make special assessments of benefits to raise said amount, together with the costs, being $12,530.61, and directs them to apportion said sum as provided by law. An assessment roll was made and returned into court, assessing the property of appellants the full amounts awarded them as compensation by the judgment of condemnation previously entered. They filed objections to the confirmation of the assessment roll, among which were the following: ‘(18) That there is no authority of law for the making of the said assessment for the proposed improvement;’ ‘(20) that the description of the property sought to be assessed is imperfect, indefinite, and insufficient;’ ‘(23) that said assessment is wholly unconstitutional, inequitable, and void.’ The jury returned a verdict finding the issues for the petitioner. Motion to set aside the verdict was overruled, and judgment was entered confirming the assessment. From this judgment the present appeal is prosecuted.

The condemnation proceeding, to which the assessment proceeding was supplemental, was conducted under sections from 3 to 15, inclusive, concerning eminent domain, of said article 9, and was based upon an ordinance passed by the city council of Chicago on September 23, 1889, ordaining that said Homan avenue from West Lake street to West Ohio street be opened and widened by condemning therefor ‘the west 33 feet of S. W. 1/4, east 1/2, N. E. 1/4 (except boulevard), section 11, T. 39 N., R. 13 E.,’ and other property. Homan avenue, which was 33 feet wide, was to be still further widened to a width of 66 feet, and said 33 feet of said southwest quarter, etc., was a strip to be taken from the west side of property belonging to the appellants, to be added to the street. Appellants were not personally served with process in the condemnation suit, and did not appear therein. Publication was made, as to them, as against unknown owners, under section 6 of said article 9. A jury was impaneled and sworn to ascertain and report the just compensation to be paid for said strip and other property. On July 8, 1890, it returned a verdict, finding the just compensation to be paid to the owners of the lands sought to be taken or damaged for the proposed public improvement, and, among the rest, to the appellants. The portion of the verdict applicable to their property was as follows: ‘In section 11, township 39 north, range 13 east, * * * to the owner or owners of west 33 feet of southwest 1/4, east 1/2, northeast 1/4 (ex. Boulevard), $2,861.76; to the owner or owners of the west 33 feet of S. W. 1/4, E. 1/2, N. E. 1/4 (except Boulevard), section 11, T. 39, 13 E., $2,640.00.’ On the same day, upon motion of the city, judgment was rendered upon this verdict, adjudging said ‘sums of money awarded by the jury in and by their said verdict to the owner or owners,’ etc., to be ‘a just compensation * * * for the taking and damaging.’ etc., and that, upon payment of the same, etc., the city should have the right to take possession, etc. At a subsequent term, to wit, on September 2, 1890, an order was entered by the court upon motion of the city setting aside and vacating said judgment of July 8, 1890, and correcting the verdict rendered on that day, so as to make the portion thereof preceding the sum $2,861.76 read as follows: ‘To the owner or owners of north half of west 33 feet.’ etc., and so as to make the portion following said sum read as follow: ‘To the owner or owners of the south 1/2 of the west 33 feet of S. W. 1/4, E. 1/2, N. E. 1/4,’ etc. No judgment was rendered upon the verdict as thus corrected until December 7, 1892, more than two years afterwards. On the latter day, judgment of condemnation was entered upon the amended verdict, awarding the above amounts as just compensation. Three days afterwards, to wit, on December 10, 1892, said order was entered appointing commissioners to assess benefits, but when the supplemental petition was filed does not appear.

The facts thus stated show that the judgmemt in the condemnation proceeding was vacated after the term at which it was rendered had passed, and without notice to the defendant property owners; and that the verdict of the jury was changed in the absence of the jurors, and long after they had been discharged. It is a well-settled rule that, after a term has expired, a court has no authority or discretion at a subsequent term to set aside a judgment or to amend it, except in matters of form, and for the purpose of correcting clerical errors. It is also a general rule that amendments of the record will not be allowed after the close of the term at which the record was made, unless there are some memoranda, minutes, or notes of the judge, or something appearing on the records or files, to amend by. It has been held that amendments in mere matters of form can only be made after notice has been given to the opposite party. Cook v. Wood, 24 Ill. 295;Smith v. Wilson, 26 Ill. 186;Swift v. Allen, 55 Ill. 303;Goucher v. Patterson, 94 Ill. 525; Railroad Co. V. Holbrook, 72 Ill. 419;Bryant v. Vix, 83 Ill. 11;Frew v. Danforth, 126 Ill. 242, 19 N. E. 293;People v. Anthony, 129 Ill. 218, 21 N. E. 780;Cook Co. v. Calumet & C. Canal & Dock Co., 131 Ill. 505, 23 N. E. 629. Was the amendment made in this case one of substance or of mere form? The verdict of the jury made two awards to the owners of the west 33 feet of the southwest quarter,-one of $2,861, and the other of $2,640. Each sum is an award of compensation for the whole strip, and not for any aliquot part of it. How can we know that the jury intended the aggregate of these sums, to wit, $5,501.76, as compensation for the whole strip? How can we know that they did not intend one of these sums to be the total compensation for the whole strip? The amendment makes them award $2,861.76 as compensation for the north half of the strip, and $2,640 for the south half thereof. But how can it be said that they intended to apportion these two amounts in the way thus designated? The plat attached to the ordinance gives the length of that portion of the strip lying north of the boulevard as 502 feet, and the length of that part lying south thereof as 450 feet. It can as well be assumed that they intended to apply the larger sum to the 502 feet and the smaller sum to the 450 feet as that they intended to apply them, the one to the north half, and the other to the south half. There is an unexplained indefiniteness about the verdict. Assuming that an error or supposed error in the verdict stands upon the same footing as an error in any other part of the record, we cannot say that the error is one of mere form. Nor is it an error committed by the clerk or any other officer of the court. It has been said that, ‘after the expiration of the term * * * the power of courts over the record is confined to errors and mistakes of their officers.’ Railroad Co. v. Holbrook, supra. But here the mistake, if mistake there was, was committed by the jury. The amendment was made in the absence of the opposite party, and without notice. There was nothing in the record to amend by, no note or minute of the judge, or other memorandum of any kind. The amendment cannot be regarded otherwise than as one of substance, and such a one as could not, in the case of an ordinary judgment, be made after the...