Kelly v. City of Chicago
| Decision Date | 29 November 1893 |
| Citation | 35 N.E. 752,148 Ill. 90 |
| Parties | KELLY et al. v. CITY OF CHICAGO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Cook county court; Frank Scales, Judge.
Proceedings by the city of Chicago to confirm a special assessment. James Kelly and Thomas E. Patterson filed objections, which were overruled, and they bring error. Affirmed.
W. T. Burgess, for plaintiffs in error.
M. W. Robinson and W. E. Thorne, for defendant in error.
This is a writ of error prosecuted to reverse the judgment of the county court of Cook county, confirming a special assessment made under an ordinance of the city of Chicago for the construction of a sewer in Belmont avenue, from the north branch of the Chicago river to the west line of Milwaukee avenue in said city. The ordinance was passed, as appears from the petition of the city to the county court, April 28, 1890, and the commissioners there appointed to make an estimate of the cost of said improvement returned an estimate thereof at $106,134. On the 14th day of May, 1890, the city filed its petition in the county court, setting forth said ordinance and said estimate, and praying that commissioners be appointed to apportion and assess such estimated cost upon property to be benefited thereby, etc. On the 13th day of June, 1890, said commissioners, having been appointed and qualified, made their report apportioning $87,363.26 upon property benefited, and the residue, $18,770.74, to the city. The amount of benefits assessed upon plaintiff in error Kelly's property was $1,054.92, and upon property of plaintiff in error Patterson $1,140.48. Kelly and Patterson appeared, and filed objection to the assessment roll returned as follows: (1) Because their property is not benefited by said improvement. (2) The sewer is not made in front of their said property, and other objections. (3) The said improvement is not made contiguous to property of said objectors. (4) That Milwaukee avenue, where said sewer terminates, is more than three-fourths of a mile east of and distant from the property of said objectors. The court overruled objections 2, 3, and 4, and treated the first as an objection to the amount of benefits assessed upon objectors' property severally, and submitted the same to a jury under the statute. The jury returned a verdict, as it is conceded in argument, finding that objectors' property was not assessed more than it would be benefited, or more than its proportionate share of the cost of said improvement; and judgment of confirmation of the assessment was entered accordingly.
There is, in this case, no bill of exceptions containing the evidence upon which the court acted in overruling objections 2, 3, and 4, or upon which the jury rendered their verdict; and, in its absence from the record, it must be presumed the facts shown are sufficient to sustain the finding. The presumption of the correctness and regularity of judicial proceedings will obtain until error therein is shown by the record. No motion for a new trial, or the rulings of the court thereon, or exceptions by plaintiffs in error, or either of them, is preserved. It is objected, however, that the court erred in overruling objections 2, 3, and 4, filed by plaintiffs in error, and in not submitting the fourth to the jury. The only question to be submitted to the jury under the statute is whether, by the assessment returned, the property of the objector is assessed more than it will be benefited by the proposed improvement, and whether it has been assessed more or less than its proportionate share of the cost thereof. Rev. St. § 31, art. 9, c. 24; Goodwillie v. City of Lake View, 137 Ill. 51, 27 N. E. 15. If, therefore, it could be said that the fourth objection containedmatter proper for the consideration of the jury, it is apparent that every question raised by it, proper to go to the jury, was submitted by the court, and plaintiffs in error were afforded an opportunity to show any and every matter legitimately affecting the question of benefits to their property to accrue from the improvement; and to show, if they...
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