Chicago Great Western R. Co. v. Ashelford

• Decision Date: 22 April 1915
• Docket Number: No. 9955.,9955.
• Parties: CHICAGO GREAT WESTERN R. CO. v. ASHELFORD
• Court: Illinois Supreme Court

268 Ill. 87

108 N.E. 761

CHICAGO GREAT WESTERN R. CO.

v.ASHELFORD

No. 9955.

Supreme Court of Illinois.

April 22, 1915.

Appeal from Ogle County Court; Frank E. Reed, Judge.

Proceeding by the Chicago Great Western Railroad Company to condemn the land of W. H. Ashelford. From an order directing petitioner to pay to the defendant attorneys' fees incurred, on the ground of the abatement of the condemnation proceedings, the Company appeals. Affirmed.

Faissler, Fulton & Roberts, of Sycamore for appellant.

Francis Bacon, of Oregon, Ill. (Lyman Dexter, of Rockford, of counsel), for appellee.

COOKE, J.

On April 24, 1913, appellant, the Chicago Great Western Railroad Company, presented its petition to the judge of the county court of Ogle county, in vacation, to condemnfor railroad purposes certain land owned by appellee, W. H. Ashelford. The cause was thereafter continued from time to time, by consent of the parties, until June 30, 1914, when a hearing was begun before a jury. On July 2, 1914, the jury returned a verdict awarding appellee $200 as compensation for land taken and $1,100 as damages to lands not taken. Two attorneys appeared in the condemnation suit on behalf of appellant. One of these attorneys resided at Oregon, in Ogle county, where the hearing was had, and the other at Sycamore, in De Kalb county. On July 6, 1914, the attorney for appellee and the local attorney for appellant appeared before the county judge of Ogle county and requested him to fix a time within which the sum awarded by the jury should be paid. Thereupon the court fixed such time at 25 days, and made the following entry upon his docket:

‘July 6, 1914.-Judgment on verdict, etc., that petitioner enter upon the property, etc., upon paying the compensation awarded within twenty-five days, etc. See order signed.’

No order was signed, however, on that day, but subsequently, on July 20, 1914, appellant's attorney residing at Sycamore prepared an order and mailed it to his associate attorney at Oregon, but it does not appear that the latter presented it to the county judge prior to October 3, 1914. On the date last mentioned, all the attorneys being present, the county judge, after making some changes to correspond with the entry on his docket, signed the written order prepared by appellant's attorney and indorsed thereon the following: ‘Order, July 6, 1914.’ It was then delivered to the clerk of the court, who filed it as of July 6, 1914. In the meantime, appellee, on September 14, 1914, filed his petition in the condemnation suit, reciting the proceedings theretofore had therein, and alleging that on July 6, 1914, the court entered its order approving the report of the jury and ordering the compensation awarded by the jury to be paid by July 31, 1914. The petition alleged that appellant did not, on or before the time fixed in said order, pay to appellee the compensation awarded by the jury, or any part thereof, and that by reason of the failure so to do the condemnation proceedings had abated; that the appellee employed attorneys to represent him in the condemnation proceedings and obligated himself to pay such attorneys $250 for services rendered by them therein; and that his other necessary expenses on account of said proceedings amounted to the sum of $60. The prayer of the petition was that the condemnation proceedings be dismissed and that appellant be ordered to pay appellee $310 on account of expenses incurred by him in defending the condemnation suit. Thereafter, on October 13, 1914, appellant answered said petition, denying that an order was entered on July 6, 1914, requiring it to pay the compensation awarded on or before July 31, 1914, and alleging that the final order was not entered of record in said proceedings until October 3, 1914, and that on the date last mentioned appellant offered said sum of $1,300 to appellee but that appellee refused to accept the same, whereupon appellant on October 8, 1914, deposited the said sum with the county treasurer of Ogle county and took a receipt therefor. A hearing was had upon said petition and answer and resulted in the entry of an order finding the facts to be as set forth in the petition, except instead of finding that appellee had become obligated to pay $310 in the defense of the condemnation suit the court found the amount to be $275, and appellant was ordered to pay to appellee the said sum of $275 within 25 days. From that order appellant has prosecuted an appeal to this court.

Prior to 1897 the statute did not require the court, in a condemnation proceeding, to fix a time for the payment of the compensation as a part of the judgment. The time for making payment rested with the petitioner, subject to the limitation that, if the judgment of condemnation was not taken advantage of and payment made within a reasonabletime, the landowner might regard the proceedings as abandoned. La Salle County Electric Railway Co. v. Hill, 260 Ill. 621, 103 N. E. 624. In 1897 section 10 of the Eminent Domain Act (Laws 1872, p. 404) was amended so as to read as follows:

‘The judge or court shall, upon such report, proceed to adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such property and the use of the same upon payment of full compensation as ascertained as aforesaid, within a reasonable time to be fixed by the court, and such order, with evidence of such payment, shall constitute complete justification of the taking of such property: Provided, that in case the petitioner shall dismiss said petition before the entry of such order or shall fail to make payment of full compensation within the time named in such order, that then such court or judge...