Goodwillie v. City of Lake View

• Decision Date: 30 March 1891
• Citation: 27 N.E. 15,137 Ill. 51
• Parties: GOODWILLIE et al. v. CITY OF LAKE VIEW.
• Court: Illinois Supreme Court

137 Ill. 51

27 N.E. 15

GOODWILLIE et al.

v.CITY OF LAKE VIEW.¹

Supreme Court of Illinois.

March 30, 1891.

Appeal from superior court, Cook county; ELLIOTT ANTHONY, Judge.

This was a proceeding by the city of Lake View to open Lake View avenue. David Goodwillie and William C. Goudy, who were made defendants, objected to the confirmation of the special assessment to pay for such improvement. Their objections were overruled, and they appeal.

W. C. Goudy, for appellants.

M. W. Robinson, (Hervey H. Anderson, of counsel,) for appellee.

SHOPE, J.

The first question presented by this record which we shall consider is whether to objections filed by appellants were filed in apt time. They were filed after the entry of the order of court upon the supplemental petition, finding the amount necessary to pay the condemnation money previously awarded in the cause for property taken or damaged in opening the contemplated extension of the avenue mentioned, and for costs accrued and to accrue in the case and in collection of assessments, and appointing commissioners to make assessments of benefits, and after their report, and service of notice of the filing thereof. This proceeding was under section 53 of article 9 of the cities and village act, (Rev. St. Ill. c. 24,) and by that section it is provided that such proceedings for the assessments of benefits shall, as near as may be, be the same as is provided in the preceding sections of the article in other cases of special assessment. Before there can be judgment confirming the assessment the statute requires the service of notice upon all persons affected thereby, and prescribes the proof of such service. It is then provided that all persons interested in any real estate affected by such assessment may appear, and file objections to the report of the commissioners making the same. It is clear that this is the first opportunity that the landowner has to be heard. In this case, on the filing of the supplemental petition, the order appointing commissioners, etc., was entered the same day, and unless the party happened to be in court no opportunity was afforded for objection, nor is any such opportunity contemplated by the statute. No answer or plea is required to be filed, or contemplated in this proceeding, the objections to be filed upon the incoming of the report of assessment taking the place of other formal pleading; hence no notice is required to be given of the filing of the petition, but notice of the return of the assessment must be given, when objection may be made. The thirtieth section, after providing that any person interested in the real estate affected may appear and file objections to the report, provides that the court may make such order in respect to the filing thereof as may be made in regard to the filing of pleas in cases at law. If no objections are filed, default is to be entered, and a judgment confirming the assessment follows. The same rule, in effect, applies in cases of condemnation. Smith v. Railroad Co., 105 Ill. 520. By section 33 the court before which the proceeding is pending is given authority at any time before final judgment to modify, alter, change, annul, or confirm any assessment returned, or cause it to be recast by the same commissioners, or may appoint others, and may make all orders necessary to the making of a true and just assessment, etc. It must follow that the orders prior to the entry of judgment are interlocutory, and subject to be set aside at any stage of the proceeding for any good cause made to appear. Until the filing of the report objections could not be filed questioning the correctness or regularity of the assessment, as a matter of course, but we are of opinion that all objections, whether pertaining to the amount of benefits assessed or going to the right of the municipality to have them assessed, or in any way affecting the validity of the assessment, may be filed at any time before default is entered, as contemplated by the statute. The matters to be submitted to the jury lie within a narrow compass, and include only the amount of benefits assessed, or to be assessed. If it appears that the premises of the objectors are assessed more or less than they will be benefited, or more or less than their proportionate share of the cost of the improvement, ‘the jury shall so find, and also find the amount the premises should be assessed.’ No other verdict is required or can be rendered. It is clear, therefore, that only such objections as question the amount of benefits returned against objectors' premises can create the necessity for submission of the assessment to a jury. Follansbee v. Chicago, 62 Ill. 288, and cases cited. The amount of benefits returned against appellants' property not being questioned by any of the objections filed, the court should have passed upon the objections, and, if it was found they were not well taken, and no others were filed by leave of the court, have entered default against these objectors, and entered judgment confirming the assessment. However, of the error in submitting the assessment of benefits to appellants' property to a jury they cannot complain, for the reason that the same was not increased by the verdict, and they are in no wise prejudiced thereby. Nor can appellants be heard to complain that the court refused to hear evidence in support of their objections after the jury were impaneled, and before the city had made its case. Waiving the question whether the objections were not waived by not insisting on them before the jury was impaneled, such evidence was addressed solely to the court, and the effect of its ruling was to overrule the objections. This evidence, offered, but rejected by the court, being preserved by bill of exceptions, the rulings may be reviewed. It it was made to appear at any time before final judgment that the precedent steps in the cause were not sufficient to justify the assessment, it was the manifest duty of the court to set aside the assessment, vacate its previous orders, if improperly entered, and to dismiss the supplemental petition if not properly filed, and no legal right existed to maintain an assessment.

It remains to consider whether the objections filed, as supported by the offered evidence, show no right in the city to have the benefits to appellant's lands assessed. The only objections necessary to be considered are those predicated upon the alleged fact that in the original proceeding for condemnation the city failed to acquire title to all the land necessary to the opening of the avenue, from which the supposed benefits sought to be assessed must flow. The evidence offered tended to show, and for the purposes of this case may be treated as showing, that lot 2 and part of lot 3, described in the original petition for condemnation as owned by appellant David Goodwillie, were in fact, at the filing of such petition and since, the property of Cecilia Goodwillie, and not of David Goodwillie; and that lot 5, in assessor's subdivision, etc., described as being owned by Victor Lawson in said petition, was in fact owned by Matilda Lawson, Carrie Lawson, Norman I. Lawson, and Victor Lawson. Cecilia Goodwillie, Matilda, Carrie, and Norman I. Lawson, not having been parties to the original proceedings, therefore there was no condemnation of their interest in said lots.

It is insisted- First, that the judgment in the condemnation proceeding formed no basis for the special assessment of benefits, there being no estimate of the cost of the improvement,-that is, the opening of said avenue,-as provided in and by section 20 of said article, and the court therefore erred in entering its order finding the amount to be raised by special assessment and appointing commissioners to apportion the same to contiguous lots, etc., according to benefits accruing from such improvement; and, second, that the city not having acquired, by condemnation or otherwise, the right of way to open and locate said extension of said avenue, no...