Delamater v. City of Chicago

• Decision Date: 01 April 1895
• Citation: 42 N.E. 444,158 Ill. 575
• Parties: DELAMATER et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

158 Ill. 575

42 N.E. 444

DELAMATER et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

April 1, 1895.

Error to Cook county court; Frank Scales, Judge.

Petition by the city of Chicago for confirmation of a special assessment. Samuel Delamater and others filed objections, which were overruled. Objectors bring error. Affirmed.

O. E. Ray, D. G. Robertson, and C. S. McNett, for plaintiffs in error.

W. J. Donlin and J. D. Adair, for defendant in error.

CRAIG, J.

This was a writ of error to reverse a judgment of the county court of Cook county confirming a special assessment. The evidence under which the assessment was made provided for the paving of Kedzie avenue from Palmer Place to North avenue, and it is first claimed that the evidence is void because it does not sufficiently state the nature, character, and description of the improvement; that it does not appear that Kedzie avenue is in the city of Chicago. The point relied on here arose in Stanton v. City of Chicago, 39 N. E. 987, and the question was decided adversely to the position of plaintiffs in error. The decision in that case is conclusive here.

It is next claimed that there is nothing to indicate the grade of the improvement. The first section of the ordinance attached to the petition, which says, ‘Said pavement to be laid to conform to the grade of said * * * between said points,’ may be regarded as defective. The defect, no doubt, arose through a clerical mistake. But, as there is no bill of exceptions in the record showing what evidence was introduced on the trial, it will be presumed that the court heard evidence sufficient to cure this supposed defect.

It is next claimed that the description of the proposed improvement is not in compliance with the ordinance. Whether there was a variance between the proposed improvement and the ordinance could only be determined from the evidence introduced on the hearing. And, as said before, as that evidence is not before us, it will be presumed that the evidence showed that the proposed improvement conformed substantially to the requirements of the ordinance.

It is next claimed that the estimate of the cost of the improvement is void, because matters not provided for in the ordinance-viz. one item, of $98, for grading; and another item, of $2,184, for the adjustment of sewers-are not introduced in the ordinance. The ordinance provides for curbing, and the space between the curbstones is to be filled to within 11 inches of the grade of the pavement with sand and clay earth or gravel, well rolled until solid, and then paved with wooden blocks, etc. From this description of the improvement as found in the ordinance it is apparent that grading and adjustment of sewers might necessarily be regarded as a part and parcel of the improvement; and, although they may not have been specifically mentioned, it was proper for the commissioners to take them into consideration in estimating the cost of the improvement. As said in City of Kankakee v. Potter, 119 Ill. 328, 10 N. E. 212: ‘It is not expected that an ordinance * * * should set forth the details and all the particulars of the work. Indeed, this is not contemplated, and the statute requires nothing of the kind. A substantial compliance with its provisions is all that is required.’

It is next claimed that the court erred in rendering two judgments of confirmation. It appears from the record that application for confirmation of the assessment was made at the December term, 1893, of the county court. On the second day of the term (December 12th) plaintiffs in error appeared, and filed objections to the confirmation of the assessment as to their property. On the 13th day of December, 1893, a default was entered, and judgment of confirmation of the assessment roll, as to those properties for which no objections had been filed, was rendered, and the court ordered the assessment roll certified, together with this judgment, to the city collector. The objections of plaintiffs in error were not reached in the court for a hearing until the February term, 1894. At this time, on February 7th, a jury was impaneled, a hearing had, and the issues submitted to a jury found in favor of the city. The objections were then all overruled, and judgment of confirmation entered as to the assessments against the property of the objectors. It also appears from the record that afterwards, on February 28, 1893, the court overruled a motion for a new trial, and again entered a judgment of confirmation as to the assessment on objectors' property. For what reason the court entered two judgments of confirmation of the same assessment, on the same property, at the same term of court, does not appear; but, while the action of the court was irregular, the plaintiffs in error were in no manner injured, and hence cannot complain. The two judgments of confirmation, having been entered at the same term, for but one assessment on the same property, will be treated as but one judgment.

The only remaining question is whether the court erred in entering two judgments of confirmation,-one in default, at the December term, 1893, as to a portion of the property assessed, and the other at the February term, 1894, as to the property where objections had been interposed, and were then overruled.

Section 30, art. 9, c. 24, Cities and Villages Act (Hurd's St. p. 272), provides that, at the term of court at which the assessment roll may be filed for confirmation, ‘any person interested in any real estate to be affected by such assessment, may appear and file objections * * * and the court may make such order in regard to the time of filing such objections as may be made in cases at law in regard to the time of filing pleas. As to all lots * * * and parcels of land to the assessment of which objections are not filed within the time ordered by the court, default may be entered, and the assessment confirmed by the court.’ Under this section of the statute, it is apparent that the court is authorized, where there is no appearance by a lot owner or owners as to them, to enter a default, and render judgment as to his or their property. But, as to property where objection is interposed to a judgment, no judgment can be rendered until such time as the court may be able, in the dispatch of business which may be pending in court, to hear the objections, and dispose of the same. It may, and no doubt will, often occur that the court may be so occupied with other business that the objections cannot be reached for a hearing during that term. In such case a continuance will be required until the next term. Then a hearing may be had, and the objections all overruled. Then follows a judgment of confirmation, as a matter of course, as to the property where objections were interposed. The legislature had the power to authorize a judgment as to a part of the property at one term, and a part at another term; and we think it is plain that, under this section, the power was conferred. This view is confirmed by section 34, which declares: ‘The judgment of the court shall have the effect of a several judgment as to each tract or parcel of land assessed, and any appeal from such judgment or writ of error shall not invalidate or delay the judgment, except as to the property concerning which the appeal or writ of error is taken.’ Suppose an assessment should be made on 50 tracts or lots of land, where each tract was owned by a different person. The court enters a several judgment of confirmation as to each tract. Forty-nine abide the judgment, but one of the parties appeal. Finally, the judgment as to the one appealing is reversed, and the proceeding is remanded for another hearing. On the second hearing, the court finds that the assessment should be confirmed, and desires to enter a judgment of confirmation. But, if the position of the plaintiffs in error is correct, the court cannot enter such a judgment, for the reason that a prior judgment has been entered as to a part of the property, and it would be erroneous to enter more than one judgment as to all the property assessed. This illustrates fully the fallacy of the position taken. Under the statute, the judgment of confirmation as to each tract of land is a several judgment; and the fact that a judgment may be entered as to one or more tracts at one term of court affords no reason...