City of Paxton v. Bogardus

• Citation: 58 N.E. 675,188 Ill. 72
• Parties: CITY OF PAXTON v. BOGARDUS et al.
• Decision Date: 19 October 1900
• Court: Supreme Court of Illinois

188 Ill. 72

58 N.E. 675

CITY OF PAXTON

v.BOGARDUS et al.¹

Supreme Court of Illinois.

Oct. 19, 1900.

Error to Ford county court; Alex. McElroy, Judge.

Proceeding by the city of Paxton against Hannah W. Bogardus and others to enforce a special assessment. From an order overruling the city's motion to set the cause for trial after its reversal, and sustaining the defendants' cross motion for judgment, and entering judgment refusing confirmation, and dismissing the petition, the city brings error. Reversed.

Magruder, J., dissenting.

Cloud & Moffett and C. E. Beach, for plaintiff in error.

A. E. De Mange, Frank Lindley, and Rowell, Neville & Lindley, for defendants in error.

CARTER, J.

In Pells v. People, 159 Ill. 580, 42 N. E. 784, a judgment for the sale of certain lots for a delinquent special assessment was reversed because, after the confirmation of the assessment for a pavement 61 feet wide, and before the making of the improvement, an ordinance was passed reducing the width of the pavement to 53 feet, in accordance with which ordinance the improvement was made without a new assessment. Afterwards a new assessment was made to pay for the pavement as laid, 53 feet wide, but the judgment of confirmation of the latter assessment was reversed by this court in Pells v. City of Paxton, 176 Ill. 318, 52 N. E. 64, because it appeared from the evidence that the contract and the improvement were made before the passage of the ordinance therefor; that is, the ordinance for the pavement 53 feet wide. The judgment of reversal of this court was as follows: ‘That in the record and proceedings aforesaid and in the rendition of the judgment aforesaid there is manifest error. Therefore it is considered by the court that for that error, and others in the record and proceedings aforesaid, the judgment of the county court in this behalf rendered be reversed, annulled, set aside, and wholly for nothing esteemed; that this cause be remanded to the county court for further proceedings in accordance with the views expressed in the opinion filed in this cause.’ When the suit was redocketed in the county court, the city of Paxton entered its motion to set the case for trial, and the appellees, who were objectors to the confirmation of the assessment upon their lots, entered their several cross motions for judgment denying confirmation of the assessment, in conformity with the opinion and mandate of this court. The county court overruled the motion of the city, and sustained the cross motions, and entered judgment refusing confirmation, and dismissing the petition. The city of Paxton then sued out this writ of error.

We agree with the city in its contention that it was error for the court to sustain the cross motions and to dismiss its petition without a trial. The petitioner was entitled to another trial after its former judgment was reversed by this court, and the cause remanded for further proceedings. While such further proceedings must be in accordance with the principles announced in the opinion filed on the former appeal, still, as the former judgment was annulled and set aside, and the cause was remanded for further proceedings, the petitioner is entitled to another...