Burhaus v. Village of Norwood Park

• Decision Date: 15 June 1891
• Citation: 138 Ill. 147,27 N.E. 1088
• Parties: BURHAUS et al. v. VILLAGE OF NORWOOD PARK.
• Court: Illinois Supreme Court

138 Ill. 147

27 N.E. 1088

BURHAUS et al.

v.VILLAGE OF NORWOOD PARK.

Supreme Court of Illinois.

June 15, 1891.

Appeal from Cook county court; RICHARD PRENDERGAST, Judge.

Cameron & Hughes, for appellants.

J. L. McKittrick and A. W. Pulver, for appellee.

SCHOLFIELD, C. J.

Appeal from a judgment of the county court of Cook county, rendered on the 26th of February, 1890, confirming an assessment to pay for the estimated cost of a system of sewers in the village of Norwood Park, a suburb of the city of Chicago. The objections urged for a reversal of this judgment will be considered, briefly, in the order of their presentation in the printed argument of counsel for appellants.

1. On the 10th of February, 1890, the court made an order that objections to the confirmation of the assessment roll should be filed by the 19th of that month. No objections having been filed, on the morning of the 19th the court entered a default, and the contention of counsel for appellants is that this was premature; that appellants were entitled to the whole of the 19th to file their objections. This is inadmissible. ‘Until the 19th’ did not extend beyond the last moment of the 18th. The objections should have been on file when the court convened on the morning of the 19th, and, not having been, there was no error in rendering a judgment by default on that morning. Clark v. Ewing, 87 Ill. 344.

2. The court, however, subsequently set aside the default; but counsel for appellants insist that they were, on the hearing preceding the making of that order, deprived of the right of trial by jury. The order of the court, as shown by the abstract, is as follows: ‘Judgment order. February 26. This day comes the village of Norwood Park and the objectors, both by their attorneys, and on motion of objectors' counsel it is ordered that the order of default and confirmation be set aside, and leave is given said objectors to file objections, which is done, and said cause comes on to be heard on the objections filed to the confirmation of assessment roll. By agreement, a trial by jury is waived, and the cause is submitted to the court. And the court, having heard the testimony and arguments in open court, and being fully advised, finds that the property of objectors is not assessed more than it will be benefited by the improvement, nor more or less than its proportionate share of the cost. It is ordered that all objections heretofore filed be overruled.’ This seems to be a complete answer to the objection of counsel. If appellants agreed to waive a jury, the court did not err in omitting to have a jury called. But, since the court was not obliged to set aside the default, it might, in doing so as a matter of favor, impose what terms it pleased; and it was hence within its discretion to let the default stand until satisfied from such evidence as it deemed necessary to hear that a different judgment should be rendered; and, from the recitals of the bill of exceptions, this, in effect, is what was done.

3. It is contended that the ordinance under which the system of sewers is constructed is void because it fails to provide an outlet. The record does not sustain this contention. James C. Elder testified: ‘I am a civil engineer, and acquainted with and familiar with this neighborhood. I designed the sewers for about sixty acres. The system, when properly extended, is adequate for house drainage and territory drainage,-ample. * * * I have provided an outlet to the north branch of the Chicago river, three-quarters of a mile; a good ditch, with a fall of 22 feet in three-fourths of a mile.’ There was also read in evidence an order of the president and board of trustees of the village providing for the cleaning and deepening of this ditch, to be paid for out of the general fund of the village. It is true that appellant's witness T. J. Foster testified that this ditch, in part, runs over private property; but, while that might be a reason for enjoining proceedings until the right to use the ground over which the ditch passes is obtained by condemnation or otherwise, it is no reason for declaring the ordinance void. Hunerberg v. Village of Hyde Park, 130 Ill. 156, 22 N. E. Rep. 486; Leman v. City of Lake View, 131 Ill. 388, 23 N. E. Rep. 346.

4. The second section of the ordinance reads as follows: ‘Sec. 2. That said improvement shall be made and the costs thereof be paid by special assessment, to be levied upon the property being benefited thereby, to the amount that the same may be legally assessed therefor, and that the remainder of the cost shall be paid by general taxation.’ It is contended that this section is illegal, in that it does not follow the statute, (paragraph 140, art. 9, c. 24, 1 Starr & C. St. p. 494,) and require that the assessment made by the commissioners shall be such that each tract shall be assessed of the whole cost in the proportion in which they will be severally benefited, But that section relates only to the duties of commissioners, (Ricketts v. Hyde Park, 85 Ill. 110;) and we must presume that they have obeyed it, unless it is made to appear that they have not. This section of the ordinance is pursuant to paragraph 135 of the same article, and the purpose of the section is merely to declare that the improvement shall be in part paid for by special assessment; and in that it is a sufficient compliance with the statute.

[138 Ill. 151]5. On the questions of fact, we are unable to...