Hickey v. Spring Creek Drainage Dist., 22069.

Decision Date21 April 1934
Docket NumberNo. 22069.,22069.
PartiesHICKEY et al. v. SPRING CREEK DRAINAGE DIST. et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Kankakee County Court; Henry F. Ruel, Judge.

Proceeding by the Spring Creek Drainage District for permission to levy assessment to pay judgment, accrued interest, costs, and attorneys' fees, in which the North Wichert Drainage District intervened. From a judgment confirming verdict of assessment, James Hickey and other landowners bring error.

Affirmed.

Eva Minor, of Kankakee, and V. A. Parish, of Commerce, for plaintiffs in error.

C. M. Granger, of Kankakee, for defendant in error Spring Creek Drainage Dist.

John H. Beckers, of Kankakee, for defendant in error North Wichert Drainage Dist.

HERRICK, Justice.

On May 15, 1928, the North Wichert drainage district obtained a judgment for $2,700 in the county court of Kankakee county against the Spring Creek drainage district as its proportionate share of the cost of certain work done in the North Wichert drainage district. The commissioners of the Spring Creek drainage district failed to pay or to levy an assessment to pay such judgment. The North Wichert drainage district obtained a judgment in the circuit court of Kankakee county awarding to such drainage district a writ of mandamus against the commissioners of the Spring Creek drainage district commanding them either to pay the judgment out of any of the funds of the district available, or, if there were no funds in the treasury available for that purpose, to levy an assessment to pay such judgment. From the judgment awarding the writ of mandamus, the commissioners of the Spring Creek drainage district appealed to this court, where the judgment of the circuit court was affirmed. North Wichert Drainage District v. Chamberlain, 340 Ill. 644, 173 N. E. 90. On March 14, 1931, after the order of affirmance from this court was filed in the circuit court, the commissioners of the Spring Creek drainage district filed a petition in the county court reciting the history of the proceedings, attaching to such petition an itemized account showing that the district had no available funds and asking for permission to levy an assessment of $3,500, stating that $800 additional would be necessary to pay accrued interest on the judgment, together with attorneys' fees incurred, court costs, and cost of levying and spreading the assessment. The county court entered an order setting the petition for hearing on April 4. The petitioners gave notice by posting, publication, and mailing for more than two weeks prior to the hearing, as provided by section 37 of the Levee Act (Smith-Hurd Rev. St. 1929, c. 42, § 37). On April 4 the cause was continued to April 10. No objections were made to the allowance of the petition, and on April 10 the county court granted the prayer of the petition, found that there were no funds available for the purpose of paying such judgment, interest, costs, and attorneys' fees, and authorized the commissioners to prepare an additional commissioners' roll of assessments of benefits and damages (hereinafter called commissioners' roll), to file such commissioners' roll with the clerk, and to give notice thereof as required by statute. On May 8, 1931, the commissioners filed their commissioners' roll, in which they described fourteen tracts of land, having a total assessable acreage of 386.26 acres, against which was assessed an aggregate sum of $3,340.06. The remaining $159.94 was assessed against a railroad company, certain highways, and two school sites. The commissioners' roll described eighty additional tracts of land within the boundaries of the district, having a total assessable acreage of 7,487.16 acres, against which no assessment was spread. None of the lands of the plaintiffs in error were assessed for benefits by the commissioners' roll. None of such owners filed any objections to the confirmation of the roll. The drainage commissioners severally owned lands in the district. None of their lands were assessed by the commissioners' roll as filed. Certain of the owners of the 386.26 acres assessed filed objections, alleging, in substance, that their lands were assessed more than they were benefited and more than their proportionate share of the judgment, interest, and costs. The North Wichert drainage district, after the filing of the commissioners' roll, filed its petition in the county court asking leave to intervene in the proceeding. Such leave was granted. A jury was impaneled, which heard the evidence and viewed the lands in the district. The jury returned a verdict in and by which every tract of land described in the assessment roll, except the highways in Pembroke township and the two school sites, was assessed. The verdict reduced the assessments made by the commissioners' roll as filed against the fourteen tracts and spread the reductions upon the eighty tracts which were described but not assessed in such commissioners' roll as filed. A motion for new trial made by many of the landowners was overruled, and the court entered a judgment confirming the verdict of the jury. To review such judgment this writ of error was sued out.

The contentions of plaintiffs in error may be grouped as follows: (1) That the county court erred in allowing the North Wichert drainage district to intervene; (2) that all orders of the court in the proceeding were void because the required statutory notice of the hearing on the original petition to levy the assessment was not given; and (3) that the county court erred in entering the judgment confirming the verdict...

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