City of Alton v. Foster
| Decision Date | 17 February 1904 |
| Citation | 207 Ill. 150,69 N.E. 783 |
| Parties | CITY OF ALTON v. FOSTER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Fourth District.
Action by Robert F. Foster, revived after his death in the name of his executrix, Sophia M. Foster, against the city of Alton. From a judgment in favor of plaintiff, affirmed by the Appellate Court (106 Ill. App. 475), defendant appeals. Reversed.Alex W. Hope and B. J. O'Neill, for appellant.
Levi Davis, for appellee.
This is a suit in assumpsit, brought to the March term, 1900, of the Madison county circuit court, by Robert F. Foster against the city of Alton. Foster has since died, and his executrix, Sophia M. Foster, prosecutes this suit. The action is for the recovery of a balance alleged to be due the plaintiff from the city for the construction of a certain sewer. Trial was had before the court without a jury, under section 61 of chapter 110 of Hurd's Revised Statutes of Illinois of 1899. The ordinance for the improvement was set out in the declaration, section 7 thereof being as follows: The contract between the plaintiff and the defendant was also set out in the declaration, and contained the following: The declaration further avers that, under the direct supervision of the city engineer and committee on sewage, Foster constructed, according to the ordinance and contract, a sewer along Second street, from a sewer in Piasa street to the junction of Third street and Second street; that, by the order and under the direction of the city engineer and committee, he connected said sewer with the sewer in Piasa street and with a sewer at the junction of Second and Third streets, which extended along Second street, and that the sewer so constructed was accepted by the city; that the city filed its petition in the county court against the property abutting on Second street from the east line of Piasa street to the west line of Ridge street, asking that the cost of the sewer mentioned in said ordinance should be assessed in the manner prescribed by law, and such proceedings were thereupon had in said county court that commissioners were appointed by said county court to make such assessment, and said commissioners, having duly qualified, made and reported to said court such assessment,and afterwards, at the August term, 1892, of said county court, the owners of certain pieces of said property so assessed filed objections to the confirmation of said assessment, and said county court rendered judgment at its October term, 1892, sustaining said objections, and thereupon said city of Alton appealed from said judgment to the Supreme Court of the state of Illinois, and afterwards, on the 16th day of October, 1895, the Supreme Court affirmed said judgment of said county court, and held the assessment null and void; that on the 29th day of March, 1896, Foster instituted an action of assumpsit against the city to recover the balance of $1,245.65 due him for the construction of said sewer, basing his action on the allegation in his declaration that the ordinance was void, and that no valid assessment could be made under it; that the city filed its plea to the declaration, in which it averred that since the assessment was held invalid it has stood ready and willing to make and levy a new assessment for the balance, and to do all things necessary and proper to collect from the property owners along the line of said improvement such sum or sums as may be required; that upon the trial of said cause the circuit court rendered judgment in favor of Foster for $1,245.65, the balance due him; that the city appealed to the Appellate Court, where the judgment was reversed; that Foster then appealed to the Supreme Court, where the judgment of the Appellate Court was affirmed, on the ground that, although the assessment was invalid, the ordinance was not void, and that the city might make a valid assessment, as in its plea it had declared its willingness and readiness to do. The declaration further avers that, after the decision of the Supreme Court holding that the city had the power to make a valid assessment to pay the balance due, Foster repeatedly and urgently petitioned and requested the city to provide a new and valid assessment, but that it has failed and refused to do so. The city pleaded nonassumpsit and the statute of limitations. No demurrer was interposed to the declaration, nor were any propositions to be held as law submitted by either party. Plaintiff obtained judgment in the circuit court, which judgment, on appeal to the Appellate Court, was affirmed, and defendant prosecutes this appeal. The errors assigned are: First, the circuit court erred in admitting improper evidence on the part of the plaintiff; second, the judgment is contrary to the law and the evidence; third, the circuit court erred in rendering judgment in favor of the plaintiff and against the defendant, when by the law the judgment should have been in favor of defendant, and appellant therefore prays the judgment of the circuit court be reversed.
RICKS, J. (after stating the facts).
The bill of exceptions in this case contains the following recital: ‘It was agreed by the parties that a jury be waived, and the issue tried by the court, under section 61 of chapter 110 of the Revised Statutes of Illinois;’ and, under this stipulation, appellant contends that all matters of law and fact are, by virtue of the provisions of said section 61 of the practice act, open for review by this court. Appellee does not controvert the position of appellant upon this question of practice, and it is therefore plain that counsel on each side of this case misapprehend the scope and application of said section so relied upon. Said section is as follows: ‘Exceptions taken to decisions of the court, upon the trial of causes in which the parties agree that both matters of law and fact may be tried by the court, and in appeal cases, tried by the court without the intervention of a jury, shall be deemed and held to have been properly taken and allowed, and the party excepting may assign for error, before the Supreme Court, any decision so excepted to, whether such exception relates to receiving improper, or rejecting proper testimony, or to the final judgment of the court upon the law and evidence.’ While the language of this section is broad, it must be construed with sections 42 and 90 of the practice act, as found in Hurd's Revised Statutes of 1899. Section 42 provides: By section 90 it is provided: ‘The Supreme Court shall re-examine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error shall be allowed which shall call in question the determination of the inferior or appellate courts upon controverted questions of fact in any case, excepting those enumerated in the preceding section.’ The cases enumerated in the preceding section are criminal cases; cases involving a freehold, franchise, the validity of a statute or construction of the Constitution; and cases relating to the revenue-in which cases appeals lie directly to this court. In cases coming from the Appellate Court to this court, such as the case at bar, the finding of that court is conclusive upon this court upon all matters of fact, and by section 90 this court is precluded from considering any question other than questions of law; and it has been uniformly held by this court that outside of the questions arising during the progress of the trial upon the rulings of the court, upon the pleadings, the admissibility of evidence, and such matters, questions of law can only be preserved and presented to this court, when the trial is before the court without a jury, by written propositions, as provided for in section 42 of the practice act. As early as 1881, in the case of Tibballs v. Libby, 97 Ill. 552, this question was fully considered, without making special application to section 61, and it was there held that questions of law could only be preserved by the submission of written propositions, and such has been the holding through a long line of cases to the present time. American Exchange Nat. Bank v. Chicago Nat. Bank, 131 Ill. 547, 22 N. E. 523;Commercial Nat. Bank v. Cauniff, 151 Ill. 329, 37 N. E. 898;Barber v. Hawley, 116 Ill. 91, 4 N. E. 770;Hardy v. Rapp, 112 Ill. 359;Farwell & Co. v. Shove, 105 Ill. 61;Swain v. First Nat. Bank, 201...
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