Browning v. City of Chicago

• Decision Date: 01 April 1895
• Citation: 155 Ill. 314,40 N.E. 565
• Parties: BROWNING et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

155 Ill. 314

40 N.E. 565

BROWNING et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

April 1, 1895.

Appeal from circuit court, Cook county; C. H. Donnelly, Judge.

Petition by the city of Chicago for confirmation of a special assessment. Granville W. Browning and others filed objections, which were overruled. Objectors appeal. Reversed.

Woolfolk & Browning, Geo. H. Taylor, E. J. Price, and H. S. Mecartney, for appellants.

J. M. Palmer, for appellee.

PHILLIPS, J.

This is an appeal from a judgment confirming a special assessment levied to pay for the improvement of Thirty-Third street, from Archer to Oakley avenue, in the city of Chicago. Different owners of property assessed filed separate objections, the principle being that the property of the respective owners who filed objections had been assessed more than it had been benefited and more than its proportionate share. The objections filed by the separate owners were substantially the same. The court entered an order confirming the assessment as to all lots where no objections had been filed as a judgment by default, and ordered ‘that a default be and is hereby entered against each and all lots, blocks, tracts, and parcels of land assessed and described in the said assessment for said improvement returned and filed in this court, as to which no objections had been filed, and that said assessment and all proceedings be, and the same are hereby, confirmed, except as to the real estate described in objections on file; and that the clerk of this court certify the assessment roll returned by said commissioners, together with this judgment, to the city, as required by law.’ The order then describes the real estate for which objections had been filed against the assessment as returned by the commissioners. Subsequently, an order was entered limiting the time within which objections should be filed. The case coming on for hearing on these objections, upon a stipulation between the attorneys for the petitioner and one of those representing certain objectors, it was ordered that the trial as to the latter should be postponed to be called for trial upon further notice, and the cause proceed to trial as to the other objectors.

On the trial so proceeded with, the jury returned the following verdict: ‘We, the jury, find the issues for the petitioner herein, and that the property of the objectors is not assessed more or less than it will be benefited by the proposed improvement, nor more or less than its proportionate share of the cost of said improvement, except as to lot 24, block 17, which we find is benefited $1; also lot 36, block 17, which we find is benefited $831.50.’ To the assessment on the two lots described in the verdict no objections had been made or filed, and, when the motion for new trial came on to be heard upon the motion of the objectors, the court, upon its own motion, amended the verdict by striking out all that part of it relating to those two lots. At the same time, upon motion of counsel for the city, it was ordered that the commissioners recast the assessment on the two lots in the verdict mentioned and described. The motion for new trial was denied, and to these several orders exception was taken. Thereupon it was adjudged by the court that the assessment as thus found by the jury, and as amended by the order of court, and all proceedings therein, be confirmed, and the clerk certify the same, together with the judgment, to the collector of the city of Chicago. The objections which were continued remained undetermined, no trial yet being had. The objectors, against whom the judgment was entered on the verdict of the jury, prosecute this appeal, and, by their briefs herein filed, three several points are urged as reasons for reversing the judgment as to them. These points, as argued in this case, are those in cluded in the 4th, 5th, 6th, 7th, 8th, and 10th assignments of error: ‘(4) The verdict is contrary to the preponderance of the evidence, and is unjust and improper, and the court erred in entering judgment on the verdict. (5) The jury misapprehended the case before them, and assumed to change the assessment on property for which objections were not made. The verdict and judgment, for that reason, are invalid. (6) The court erred in granting the motion of the city of Chicago to recast the assessment as to lots twenty-four (24) and thirty-six (36) in said block seventeen (17), after the jury, by their verdict, had determined the proper assessment of said lot twenty-four (24), and after judgment of confirmation had been entered by default as to said lot thirty-six (36). (7) The court erred in trying the case as to only a part of the objectors, and in setting off lots twenty-five (25) and twenty-six (26) in block three (3), and lot one (1), block five (5), in Walker's subdivision of the northwest quarter (N. W. 1/4) of section thirty-one (31), township thirty-nine (39) north, range fourteen (14), for a separate trial, contrary to the statute in such case made and provided, and contrary to law. (8) The court erred in granting the motion of the city of Chicago to recast the assessment as to certain lots, and entering judgment on the verdict excluding such lots.’ ‘(10) The court erred in ordering the confirmation of the special assessment, etc., and entering judgment, etc., when the commissioners had not reported their action in recasting the assessment as to lots 24 and 36 in block 17, etc., and before such recasting had been made and the same confirmed or objected to, making two distinct and separate assessments for the same improvement.’

The 5th, 6th, 7th, 8th, and 10th will be considered together, and involve the question whether two or more judgments in relation to the same assessment roll may be entered where objections are filed to only part of the real estate. Sections 30 to 35 of article 9 of the act for the incorporation of cities and villages...