Fisher v. City of Chicago

• Decision Date: 22 December 1904
• Parties: FISHER et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

213 Ill. 268

72 N.E. 680

FISHER et al.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Cook County Court; O. N. Carter, Judge.

Proceedings for special assessment for local improvements by the city of Chicago against Lucius G. Fisher, trustee, and others. From a judgment of confirmation, defendants appeal. Affirmed.

N. W. Hacker and William J. Donlin, for appellants.

Robert Redfield and Frank Johnston, Jr. (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee.

CARTWRIGHT, J.

The county court of Cook county confirmed a special assessment against property of appellants, levied to defray the cost of constructing a sewage pumping station, including buildings, machinery, and appurtenances, and an extensive system of main sewers connected therewith, to be laid in the streets of a part of the city of Chicago, and from the judgment of confirmation this appeal was taken.

The errors assigned, which are relied upon in this court, are, in effect, first, that the estimate of the engineer submitted by the board of local improvements with the ordinance is not sufficiently itemized; second, that the ordinance fully describing the improvement varies from the estimate and includes some things not embraced in such estimate; third, that the ordinance does not sufficiently prescribe the nature, character, locality, and description of the improvement; fourth, that the ordinance will require future legislation of the city council to make it operative; fifth, that the improvement is not a local improvement for which a special assessment can be levied, but is one which must be paid for by general taxation; sixth, that the judge before whom the question of benefits was heard was without jurisdiction to hear the same; seventh, that the superintendent of special assessments, being an employé of the city, was an interested person, not legally qualified to make the assessment and to apportion benefits between the city and property owners, and that the act authorizing him to do so is void.

None of these objections was presented to the county court. The abstract contains numerous objections, which, with tow exceptions, could not possibly include any of the objections now made, and the remaining two were of the most general character, to the effect that there was no valid ordinance authorizing the assessment and that the proceedings were not in accordance with the statute, with no hint of any objection now raised. Section 46 of the local improvement act provides that any person interested in any real estate to be affected by an assessment may appear and file objections. By section 48 all objections, except as to benefits, are to be heard by the court; and by section 49, if there is an objection as to benefits, it is to be tried by a jury, unless a jury shall be waived. Hurd's Rev. St. 1899, pp. 372, 373. An appeal is allowed for the purpose of reviewing the decision of the county court upon the objections filed, and, if that court has jurisdiction of the subject-matter, the party appearing there must present his objections to that court. Objections must be made in such manner as to show the point on which a decision is asked, and to enable the opposite party to obviate the objection, if it can be done. The county court is not charged with the duty of searching for objections which are not pointed out, and an objection not made in that court must be regarded as waived and cannot be made for the first time on appeal to this court. Kelly v. City of Chicago, 148 Ill. 90, 35 N. E. 752;Chicago Terminal Transfer Co. v. City of Chicago, 178 Ill. 429, 53 N. E. 361;Fiske v. People, 188 Ill. 206, 58 N. E. 985,52 L. R. A. 291; 2 Cyc 677. That rule applies to all objections which the county court has jurisdiction to hear and determine, but an objection that the court had no jurisdiction of the subject-matter is one that cannot be waived, and my be raised for the first tiem on appeal or writ of error. A judgment rendered by a court having no jurisdiction of the subject-matter is a mere nullity. Consent cannot give jurisdiction over subject-matter, and a court may take notice of a want of jurisdiction of its own motion. Foley v. People, Breese, 57; Way v. Way, 64 Ill. 406; 2 Cyc. 680. In this case there is no question of jurisdiction of the persons of appellants. Where a party voluntarily appears and files objections, recognizing the jurisdiction, he waives all questions as to jurisdiction over him. The objections now urged, not having been made in the county court, cannot be reviewed, except so far as they relate to jurisdiction over the subject-matter.

The objections argued here are all what are termed ‘legal objections' to the assessment, which were proper to be heard by the court. On the question of benefits, appellants waived a jury and offered no evidence, so that there is no question of that kind. When the legal objections were overruled by the court, no exception was taken to the ruling or decision, and it could not be reviewed for want of an exception. In order to preserve a question for review on appeal, an exception must be taken to the decision. East St. Louis Electric Railway...