Comm'rs of Lincoln Park v. Schmidt

• Decision Date: 11 May 1944
• Docket Number: No. 27796.,27796.
• Citation: 386 Ill. 550,54 N.E.2d 525
• Parties: COMMISSIONERS OF LINCOLN PARK v. SCHMIDT et al.
• Court: Illinois Supreme Court

386 Ill. 550

54 N.E.2d 525

COMMISSIONERS OF LINCOLN PARK

v.SCHMIDT et al.

No. 27796.

Supreme Court of Illinois.

March 21, 1944.

Rehearing Denied May 11, 1944.

Condemnation proceeding by the Commissioners of Lincoln Park against Adolph Schmidt and wife. During the pendency of the proceeding, Adolph Schmidt died and his executors were substituted as parties defendant in his place. From an order dismissing the proceeding and from an order denying allowance of attorney's fees, costs and expenses to defendants, the defendants appeal.

Affirmed in part and reversed in part, and remanded with directions.Appeal from Superior Court, Cook County; Peter H. Schwaba, judge.

Warren H. Orr and Urion, Bishop & Sladkey, all of Chicago (Howard F. Bishop, Jerome J. Sladkey, and George P. Novak, all of Chicago, of counsel), for appellants.

John O. Rees and Winston, Strawn & Shaw, all of Chicago (Ralph M. Shaw, Philip A. Lozowick, John D. Black, and Edward J. Wendrow, all of Chicago, of counsel), for appellee.

FULTON, Justice.

The issues here to be decided involve the third phase of the case to come before this court. The two previous decisions are reported under the same title, Com'rs of Lincoln Park v. Schmidt, 375 Ill. 474, 31 N.E.2d 969, and 379 Ill. 130, 39 N.E.2d 1012. As will there appear, the case was instituted under the Eminent Domain Act on September 27, 1928, in the superior court of Cook county to condemn certain riparian rights of Adolph Schmidt and wife in real estate owned by them in Chicago and bordering on Lake Michigan. In addition to facts appearing in the present record further references to said decisions are necessary in order to put together the chain of events which led to the present appeal.

By our first opinion the trial court was reversed in its order granting a new trial and directed to enter judgment upon the original jury verdict returned May 17, 1932, in the amount of $32,550. Following that mandate the superior court on March 28, 1941, signed a formal written judgment for such amount plus $14,424.55 as interest at five per cent per annum from the date of the jury verdict nearly nine years previously, or a total of $46,974.55. This judgment also provided, among other things, that ‘petitioner * * * on or before 60 days from March 28, 1941, pay to the defendants * * * the sum of $46,974.55.’ Interest was allowed upon the theory that section 3 of the Interest Act permits five per cent upon any report, award, or verdict until judgment is entered. The fixed time within which to pay obviously was in compliance with section 10 of the Eminent Domain Act (Ill.Rev.Stat.1943, chap. 47, par. 10), which provides that after verdict the trial court shall order an entry upon the lands by petitioner upon payment of the award ‘within a reasonable time to be fixed by the court.’ Thereupon the park commissioners appealed, the principal objection being the allowance of the $14,424.55 interest item. The judgment was affirmed, as appears from our decision in 379 Ill. 130, 39 N.E.2d 1012. Although the point was not raised or considered at that time, said second appeal was perfected by notice of appeal filed June 26, 1941, which was within the statutory ninety days of the entry of judgment on March 28, 1941, but more than the sixty days prescribed for payment of the award. The consequence of this detail will appear subsequently in this opinion in connection with the first issue discussed.

A rehearing was denied in the second appeal on March 11, 1942, and nine days later the park commissioners (hereinafter referred to as appellee) filed a motion in the trial court to dismiss the cause. Thereafter the mandate from this court was filed but nothing further appears to have been done until appellee gave notice that its motion to dismiss would be called up for hearing on September 15, 1942, and that the Schmidts should then and there produce any contracts they had made with respect to payment of attorney's fees and other expenses of this suit. In point of time it next appears that appellee's motion to dismiss was granted on December 14, 1942, but this was not confirmed by written order until July 13, 1943, the effect of which is disputed by the parties hereto. Although not suggested until December 22, 1942, it then developed that Adolph Schmidt, Sr., one of the original defendant landowners, had died on November 20, 1941. Accordingly his executors were substituted as parties defendant in his place and they are hereinafter referred to as appellants.

In the meantime hearings had been held pursuant to the notice of September 15, 1942, upon the amount of attorney's fees, costs, and expenses allowable to Schmidt and wife under section 10 of the Eminent Domain Act, as there provided in the event a condemnation judgment should not be paid or the proceedings dismissed. To complete the record, the executors of Adolph Schmidt's estate filed their formal written application for attorney's fees, costs, and expenses under said section 10 on January 12, 1943. That same day, at the conclusion of the evidence offered by appellants in support of their application, and again on January 22, 1943, at the conclusion of all the evidence, appellee moved to deny and dismiss said application on the basis that the right to attorney's fees, costs, and expenses was purely statutory and did not survive to the executors but abated upon the death of Adolph Schmidt. Its motion also asked that Frieda Schmidt, widow of Adolph Schmidt and one of the original respondents because of her interest in the land and riparian rights involved, likewise be denied any attorney's fees, costs or expense because she had failed to show any payment or obligation for the same. The trial court allowed the motion in its entirety and an order was entered accordingly. From that order, as well as the companion order of the same date dismissing the cause, an appeal comes directly to this court as provided by section 12 of the Eminent Domain Act.

At this juncture it may be observed that preliminary to oral arguments appellee presented in this court its motion for leave to file an additional transcript and to dismiss the appeal, which motion we stated would be taken for consideration with the case as a whole. From the motion it appears that within five days after appellants served their praecipe on appellee the latter served a praecipe calling for additional parts of the record, but the same were not in fact incorporatied in the record filed herein. Appellee thus contends that Rule 36 of this court, Ill.Rev.Stat.1943, c. 110, § 259.36, has been violated in that appellants failed to provide a complete transcript of record. It appears, however, that the principal item called for by appellee's praecipe was the evidence in the report of proceedings as to the amount of attorney's fees, costs and expenses; but nowhere do we find that the court below entered any order or judgment actually fixing such amount. Therefore, the question of amount, or whether alleged items of fees, costs and expenses are reasonable or proper, is not in any way now before this court, and what the record might show in such respects is entirely immaterial on this appeal. For these reasons, said motion to dismiss the appeal is denied.

In the consideration of the case on its merits we find that the issues presented may be summarized as follows: First: Did the fact that the second appeal was perfected on June 26, 1941, and, therefore, after the sixty days allowed for payment of the judgment, have the effect of making said judgment final and collectible as a result of our affirmance, or could the suit still be dismissed or abandoned as in the usual condemnation proceedings under the Eminent Domain Act? Second: If the suit could be dismissed or abandoned after affirmance of the judgment on the second appeal, did the right to attorney's fees, costs, and expenses under section 10 of the Eminent Domain Act abate upon the death of Adolph Schmidt or survive in favor of his executors? Counsel for both appellants and appellee state that the issues presented are of first impression and our own investigation of decided cases confirms such to be the fact. We will discuss the questions in the order stated.

As a general proposition, the right to dismiss a suit instituted under our Eminent Domain Act, or to abandon it by nonpayment of the judgment entered on the verdict, has long been recognized as fundamental to Illinois jurisprudence. Chicago & Western Indiana Railroad Co. v. Guthrie, 192 Ill. 579, 61 N.E. 658;Chicago Great Western Railroad Co. v. Ashelford, 268 Ill. 87, 108 N.E. 761;City of Winchester v. Ring, 315 Ill. 358, 146 N.E. 541;County of Will v. Cleveland, 372 Ill. 111, 22 N.E.2d 929. This follows because of the very nature of the proceeding, which is simply to judicially determine the just compensation to be paid before the property can lawfully be taken or entered upon. In such a suit the condemnor is under no legal obligation to pay the judgment unless it so elects, and a judgment providing that a landowner shall unconditionally recover any particular amount is erroneous. City of Bloomington v. Miller, 84 Ill. 621;City of Chicago v. Hayward, 176 Ill. 130, 52 N.E. 26. Likewise, no execution can be issued or suit prosecuted to collect such a judgment as might ordinarily be done upon a quod recuperet judgment. City of Chicago v. Barbian, 80 Ill. 482;Lingle v. Clear Creek Drainage Dist., 281 Ill. 511, 118 N.E. 77.

The evils which originally existed in permitting a condemnor to greatly delay payment or in requiring the landowner to bring a suit to determine what was a reasonable time within which to pay were corrected by an amendment of July 1, 1897, requiring the court to fix a time for payment. By the same enactment, the right to dismiss was clarified and landowners were afforded relief by way of attorney fees, costs, and expenses in the event of dismissal or abandonment, which was highly proper, because...