Comm'rs of Lincoln Park v. Schmidt

• Decision Date: 11 March 1942
• Docket Number: No. 26473.,26473.
• Citation: 39 N.E.2d 1012,379 Ill. 130
• Parties: COMMISSIONERS OF LINCOLN PARK v. SCHMIDT et al.
• Court: Illinois Supreme Court

379 Ill. 130

39 N.E.2d 1012

COMMISSIONERS OF LINCOLN PARK

v.SCHMIDT et al.

No. 26473.

Supreme Court of Illinois.

Jan. 22, 1942.

Rehearing Denied March 11, 1942.

Appeal from Superior Court, Cook County; John J. Supe, judge.

Action by the Commissioners of Lincoln Park against Adolph Schmidt and others to condemn the riparian rights of defendants in certain property. From the judgment, the plaintiffs appeal.

Affirmed.Winston, Strawn & Shaw and John O. Rees, all of Chicago (John D. Black, Philip A. Lozowick, and Gerard E. Grashorn, all of Chicago, of counsel), for appellant.

Orr, Vail, Lewis & Orr and Urion, Bishop & Sladkey, all of Chicago (Warren H. Orr, Howard F. Bishop, Jerome J. Sladkey, and Robert F. Dewey, all of Chicago, of counsel), for appellee.

GUNN, Justice.

This case was before us on a previous appeal in Lincoln Park Commissioners v. Schmidt, 375 Ill. 474, 31 N.E.2d 969. In that case we reversed the order of the superior court of Cook county, granting a new trial, and remanded the cause with directions to enter judgment upon the verdict. The mandate of this court was filed and, March 28, 1941, judgment duly entered on the verdict of $32,550 together with interest at the rate of five per cent from the date of the verdict, amounting to a total of $46,947.55. The judgment is for compensation for riparian rights of appellees taken in an eminent domain proceeding, and as provided by statute the appeal from such judgment comes directly to this court.

No additional evidence was taken in the cause and the record and transcript filed in the previous appeal are refiled in this case. Two principal points are urged by appellant,-first, that there is no proof in the record of the value of the riparian rights taken; second, that no interest should have been allowed upon the judgment because it was conditional and not final.

Upon the first point urged appellees reply that the evidence in the record was before this court on the former appeal, and that the remanding of the cause with directions to enter judgment on the verdict is final and conclusive upon this question. Where a case has been decided upon appeal by this court and is brought up upon a second appeal involving the same questions, the only question open for consideration is whether the trial court followed the mandate of this court. People v. Day, 279 Ill. 148, 116 N.E. 729;Muhlke v. Muhlke, 285 Ill. 325, 120 N.E. 770. The trial court cannot err if it follows the opinion and mandate of the Supreme Court. Manternach v. Studt, 240 Ill. 464, 88 N.E. 1000,130 Am.St.Rep. 282;Dustin v. Brown, 303 Ill. 428, 135 N.E. 779. However, appellant says the Supreme Court in the first appeal did not pass upon all of the issues in the case, and that the question of whether there is any evidence to support the judgment is still open. In Washburn & Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30, 6 N.E. 191, 201, we said: ‘It is well settled * * * (1) where a question, either of law or fact, is decided by this court in a case properly before it for such decision, the same question cannot be again raised in that case, except upon petition for rehearing; (2) where a case has been heard in a trial court, reviewed in this court, and remanded to the trial court with directions as to the decree it shall enter on its subsequent appeal to this court, errors cannot be assigned for any cause that existed prior to the former decision of this court.’ It has been broadly stated that a decision on a former appeal settles every question which was raised or might have been raised, leaving open for consideration only the question whether the trial court followed the mandate from the appellate court. People v. Day, supra; Henning v. Eldridge, 146 Ill. 305, 33 N.E. 754; People v. Young, 309 Ill. 27, 139 N.E. 894;City of Chicago v. Dempcy, 281 Ill. 257, 117 N.E. 1010.

In the former appeal of this case a new trial was granted by the superior court because of proof of improper elements of damages in ascertaining the value of the riparian rights to be taken for public use. The erroneous ruling of the trial court in admitting improper evidence as to ascertaining the market value of riparian rights was upon the insistence of appellant over the objection of appellees. In the former appeal we said the trial court should not have allowed a new trial because of errors induced by and in favor of the moving party. By our mandate requiring the superior court to enter judgment upon the verdict we have determined as the law of the case that the evidence, under the circumstances shown in the record upon appeal, was sufficient to require judgment on a verdict. People v. Young, supra. Nothing has occurred to change the circumstances except judgment has been rendered in compliance with our mandate. To permit appellant to now urge there is no evidence to support a judgment, when we have expressly directed the trial court to enter judgment upon the same evidence, is directlyopposed to our prior decision on the same question. For the court to hold that the evidence on the first appeal was sufficient to sustain the verdict, and on a second to say that the judgment entered in compliance with our mandate upon that evidence should be set aside for want of evidence would be absurd. The first point of appellant has been passed upon and is no longer open to question.

The second point raised by appellant that the judgment entered was conditional, and no interest should have been allowed, requires a consideration of the facts, as well as the statute under which the appellant exercised the right of eminent domain. The verdict was returned by the jury May 17, 1932; a motion for new trial made May 27, 1932, and granted July 6, 1940. Upon said order granting a new trial being reversed by this court, with directions to enter judgment upon the verdict, the trial court in entering up such judgment computed interest on the verdict from the time it was rendered to the day of entering judgment, and included such amount in the same. Appellant claims the action of the trial court was error; that in the exercise of the right of eminent domain, whether under the general statute of 1872 or by virtue of the provisions of the Local Improvement act, Ill.Rev.Stat.1939, chap. 24, pars. 729-731 the judgment is conditional. It is therefore contended that the part of the Interest act which provides ‘when judgment is entered upon any award, report or verdict, interest shall be computed at the rate aforesaid, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment,’ Ill.Rev.Stat.1939, chap. 74, par. 3, cannot apply, because there may never be a judgment entered.

Since there are substantial differences between the provisions of the Eminent Domain act, (Ill.Rev.Stat.1939, chap. 47, § 10) and the provisions of eminent domain contained in the Local Improvement act, supra, both with respect to when judgment shall be entered, and as to abandonment of the proceeding, it is important to ascertain under which statute appellant was authorized to, and did, proceed in the present case. The act authorizing park commissioners controlling parks bordering on public waters to acquire submerged lands for park purposes, and to condemn riparian rights, was adopted June 15, 1895, and amended in 1903, Laws 1903, p. 260 and 1912, Laws 1912, 2d Sp.Sess., p. 51. As originally enacted the right of eminent domain was granted to such park commissioners to be exercised in accordance with the provisions of article 9 of the Cities and Villages act. Laws of 1895, p. 282. The amendment of 1903 contained the same provisions, although at that time most of the provisions of article 9 of the Cities and Villages act had been superseded by the Local Improvement act, supra, of 1897. The Park act was again amended in 1912, and provided that acquisition of riparian rights by eminent domain should be in accordance with the provisions of the Eminent Domain act of 1872 (Ill.Rev.Stat.1941, chap. 47) which has been in force at all times during the progress of these proceedings.

Section 9 of the Eminent Domain act of 1872 provides: ‘Said jury shall * * * make their report in writing * * * so as to clearly set forth and show the compensation ascertained to each person thereto entitled, and the said verdict shall...