McChesney v. Kern

• Decision Date: 19 June 1893
• Citation: 34 N.E. 431,145 Ill. 614
• Parties: McCHESNEY et al. v. PEOPLE ex rel. KERN, County Treasurer.
• Court: Illinois Supreme Court

145 Ill. 614

34 N.E. 431

McCHESNEY et al.

v.PEOPLE ex rel. KERN, County Treasurer.¹

Supreme Court of Illinois.

June 19, 1893.

Appeal from Cook county court; Frank Scales, Judge.

This was an application by the county treasurer of Cook county for judgment for delinquent taxes. A. B. McChesney and others filed objections, which were overruled, and they appeal. Reversed.

F. W. Becker, for appellants.

F. W. C. Hayes and J. S. Miller, Corp. Counsel, for appellee.

SHOPE, J.

This is an appeal from a judgment of the county court of Cook county against the lands of appellants for the amount of a special assessment returned delinquent, and which was levied in a proceeding by the city of Chicago to assess benefits to said lands, among others, by the opening of Madison avenue, and to pay compensation and damages awarded in condemnation proceeding for the opening of said avenue. The amount returned by commissioners against appellants' land was $640, and, appellants failing to appear in the assessment proceeding, judgment of confirmation was rendered therein.

The objections interposed in the county court go to the jurisdiction of the court rendering the judgment of confirmation. By section 26, art. 9, c. 24, Rev. St., the commissioners appointed to make the assessment are required to make and return an assessment roll which shall contain a description of each lot, block, tract, or parcel of land, the amount assessed as special benefits, and the names of the owners so far as known. The next section requires the commissioners to give notice of the time at which a final hearing will be had upon such roll. They are required to mail each owner of premises assessed, where name and place are known to them, a notice thereof, the substantial form of which is given in the statute. Second, they shall cause at least 10 days' notice to be given by posting notices in at least four public places in the neighborhood of the proposed improvement, and, when a daily paper is published in such city or village, by publishing the same at least five successive days in such daily newspaper; the form of which, to be substantially followed, is also prescribed. The next section requires that one or more of the commissioners,on or before the final hearing, file an affidavit that the notices were sent by mail, as required in the preceding section, and also an affidavit of the person who posted the notices that they were posted as required therein, and that a certificate of the publication of said notice be filed, in like manner as required in other cases. By referring to section 1, c. 100, of the statutes, we find it provides that when any notice shall be required by law to be published in any newspaper, and no other mode of proving the same is provided, the certificate of the publisher, with a written or printed copy of such notice annexed, stating the number of times the same has been published, and giving the dates of the first and last papers containing the same, shall be evidence of the publication therein set forth.

Appellants entered a special appearance in the county court, and objected to the entry of, judgment against their lands for the delinquent special assessments for the reason that the court rendering judgment of confirmation was without jurisdiction to enter the same. That the mailing, posting, and publication of the notice required by the statute are necessary to confer jurisdiction upon the court to render judgment of confirmation in cases of special assessment is unquestioned. The commissioners filed, in attempted compliance with the statute, the following certificate of publication of notice: ‘State of Illinois, Cook County-ss.: This certifies that a notice, of which the annexed notice is a true copy, has been published five successive days in the Chicago Mail, a daily newspaper printed and published in the city of Chicago, in said county, and that the date of the first paper containing the said published notice was the 5th day of Feb., A. D. 1892, and that the date of the last paper containing the same was the 10th day of Feb., A. D. 1892. * * * In witness whereof Joseph R. Dunlop, publisher of said Chicago Mail, has signed this certificate this 8th day of February, 1892. ...