Goodrich v. City of Minonk.

• Decision Date: 30 September 1871
• Citation: 62 Ill. 121,1871 WL 8336
• Parties: C. W. GOODRICHv.CITY OF MINONK.
• Court: Illinois Supreme Court

62 Ill. 121

1871 WL 8336 (Ill.)

C. W. GOODRICH

v.CITY OF MINONK.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Woodford County; the Hon. S. L. RICHMOND, Judge, presiding.

Messrs. CHITTY & GARATT, for the appellant.

Mr. M. L. NEWELL, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This is an appeal from the Circuit Court of Woodford County to reverse a judgment rendered against appellant's lot of ground in the city of Minonk, assessed for the improvement of a certain ditch theretofore constructed by the city authorities. Appellant had due notice of the assessment and of all the preliminaries required by the statute to authorize a judgment. By the act of 1854, Session Laws, section 2, it is provided, in all cases where assessments have been or may hereafter be made by the corporate authorities of any town or city in this State, on any lot or real estate in such town or city, for the purpose of improving any street, sidewalk, or alley in front of such lot or real estate, or for any purpose whatever, either by ordinance, resolution, or other proceeding, and such assessment is not paid within the time fixed by the order, resolution, or ordinance making the assessment, the corporate authorities may apply to the county court for judgment against the lot for the amount of the assessment and costs.

An order was duly entered of record by the city council on the 3d of September, 1869, directing that “the main ditch running on the east side of Chesnut street, from the calaboose, north to Stoddard and Newton's crossing, be completely leveled with sumps, and tiled with twelve-inch tile, and that upon completion thereof an assessment be made upon the lots, premises, and real estate in said city benefited thereby, for the special benefits to said lots, premises, or real estate, arising from said ditch.

The sum of twenty dollars was assessed on appellant's lot, and he complains that his lot did not adjoin this ditch, and seems to confound this improvement as ordered by the city council with the improvement of a street, sidewalk, or alley, which the lot to be assessed, must adjoin or front upon.

This is a mistaken view. The power to make this assessment is fully conferred by that portion of the act of 1854, which we have quoted.

Appellant next complains that the real estate of the Illinois Central Railroad Company, which this ditch passes through, was not assessed.

The assessment was not for making the ditch, but for improving it, and the record does not show the real estate of this company was specially benefited by this improvement.

Appellant, however, insists that he offered to prove by a competent witness, that this railroad company was greatly benefited by the construction of this ditch, and the court rejected the testimony.

When it is recollected that the assessment was for tiling this ditch and leveling it with sumps, any testimony as to benefits arising from its original construction was irrelevant, and was properly rejected.

It is further complained that the collector's notice of application for judgment in the county court was insufficient, and the court could not legally enter an order for the sale of the lot, the notice not having stated that an order of sale would be asked for. Reference is made to Charles v. Waugh, 35 Ill. 315. In that case there was no personal notice upon the owner, nor appearance by him. In this case there was personal notice, an appearance entered, and objections filed. Appellant was in court, subject to any judgment the court might pronounce. The act of 1854 leaves it discretionary with the corporate authorities as to the time and kind of notice of the application to the county court, and therein differs from the general revenue law, which gives the form of the notice, and under which the case of Charles v. Waugh, supra, was decided.

It is further objected by appellant that after the testimony was closed, and the argument had commenced, the court, against the objection of appellant, allowed ...