Boynton v. People ex rel. Kern

• Decision Date: 20 January 1896
• Citation: 159 Ill. 553,42 N.E. 842
• Parties: BOYNTON v. PEOPLE ex rel. KERN, County Collector.
• Court: Illinois Supreme Court

159 Ill. 553

42 N.E. 842

BOYNTON

v.PEOPLE ex rel. KERN, County Collector.

Supreme Court of Illinois.

Jan. 20, 1896.

Appeal from Cook county court; Frank Scales, Judge.

Application on relation of Charles Kern, county collector, against Charles W. Boynton, for judgment of sale for a delinquent special assessment. From a judgment for plaintiff, defendant appeals. Affirmed.Wilson, Moore & McIlvaine, for appellant.

J. D. Adair, for appellee.

The is an appeal from the order or judgment of the county court of Cook county for the sale of a lot of appellant delinquent for the nonpayment of a special assessment levied on said lot for the construction of a cement sidewalk on both sides of Michigan avenue, from Fifty-Fifth street to Sixty-Third street. Two objections were filed to the rendition of judgment. The first of these it is unnecessary to mention. The second was as follows: ‘Second. The land upon which the said improvement was proposed to be constructed was not, at the time of the filing of the petition, dedicated to public use, nor had it been condemned therefor, nor has said land since been dedicated or condemned for public use, nor have any steps been taken to acquire the same by the city of Chicago; and said premises upon which the said improvement has been made was, and still is, private property.’Along with the objections there was submitted to the court a stipulation containing the following agreed statement of facts: ‘That the objector, Charles W. Boynton, is the owner in fee simple of lot thirteen (13) in Nash, Gray & Rankin's subdivision of the south twenty-seven (27) acres of the southwest quarter (S. W. 1/4) of the southwest quarter (S. W. 1/4) of section fifteen (15), township thirty-eight (38) north, range fourteen (14) east of the third principal meridian; that said premises abut upon Michigan avenue, between Fifty-Fifth and Sixty-Third streets; that said street, in front of the property of said objector, is laid out and is sixty-six (66) feet wide, and no more; that said premises of said objector, out to the line of said Michigan avenue, as platted, sixty-six (66) feet wide, are now in possession of said Charles W. Boynton, and were fenced in, and in his possession, at the time the assessment No. 16,258 was first levied by the city of Chicago; that the ordinance upon which said assessment was based provided for the construction of a cement sidewalk extending through and upon a strip of the objector's property seventeen (17) feet wide, running parallel to and abutting upon said Michigan avenue; that said special assessment was afterwards, to wit, on the 12th day of April, A. D. 1893, confirmed by the county court of Cook county, and that thereafter, pursuant to said ordinance and said assessment, the said city of Chicago let the contract for constructing the improvement above described, and that the contractor to whom said contract was let afterwards broke down the fence and laid down a cement sidewalk, pursuant to said ordinance and said assessment, upon the strip of land above described, which is and was the property of said objector, and was in his possession at that time; that the said city of Chicago has at no time taken steps to acquire title to said strip of private property; and that said strip upon which said cement sidewalk has been laid does not, and never did, belong to the said city of Chicago, but is the private property of the said Charles W. Boynton.’The court overruled the objections, and entered an order and judgment for the sale of the lot of appellant for the payment of the assessment levied upon it.

BAKER, J. (after stating the facts).

This court has held in numerous cases that the owner of property specially assessed for a local improvement cannot, when application is made for confirmation of the assessment, interpose the objection that the municipal corporation has not acquired title to the ground or land upon which the improvement has been, or is to be, made. Village of Hyde Park v. Borden, 94 Ill. 26;Holmes v. Village of Hyde Park, 121 Ill. 128, 13 N. E. 540;Hunerberg v. Village of Hyde Park, 130 Ill. 156, 22 N. E. 486;Leman v. City of Lake View, 131 Ill. 388, 23 N. E. 346;Goodwillie v. City of Lake View, 137 Ill. 51,23 N. E. 346;Burhans v. Village of Norwood Park, 138 Ill. 147, 27 N. E. 1088.

It is claimed by counsel for appellee that, upon an application of the county collector for judgment and order of sale in the matter of a special assessment, the only questions that a court can try are those of jurisdiction and delinquency. On the other hand, counsel for appellant contend, that under the law as it now stands, everything which shows that a special assessment ought not to be collected, and which by reason of the statute and the decisions of the courts, cannot be raised or heard at the time of the application for judgment of confirmation, can be urged as a defense upon the application of the county collector for judgment of sale, and proper relief granted by the court upon such application. In regard to the return made by the collector when applying for judgment of sale, it is provided in the next to the last sentence of section 39, art. 9, c. 24, Rev. St., that ‘said report when so made, shall be prima facie evidence that all the forms and requirements of the law in relation to making said return have been complied with and that the special assessments mentioned in said report are due and unpaid.’ And the last clause in the section reads thus: ‘And upon the application for...