People ex rel. Claussen v. City of Chicago

• Decision Date: 19 January 1942
• Docket Number: Gen. No. 41902.
• Citation: 313 Ill.App. 52,39 N.E.2d 65
• Parties: PEOPLE EX REL. CLAUSSEN ET AL. v. CITY OF CHICAGO ET AL.
• Court: United States Appellate Court of Illinois

313 Ill.App. 52

39 N.E.2d 65

PEOPLE EX REL. CLAUSSEN ET AL.

v.CITY OF CHICAGO ET AL.

Gen. No. 41902.

Appellate Court of Illinois, First District, First Division.

Jan. 19, 1942.

Appeal from Circuit Court, Cook County; Wm. V. Brothers, Judge.

Action by People of the State of Illinois on relation of Arthur E. Claussen and others against the City of Chicago and others for mandamus to compel payment of a judgment. From an order striking their petition and dismissing their suit, relators appeal.

Affirmed. James J. Glassner, Einar Howard, Edwin Hamilton, and Clarence Hortsman, all of Chicago, for appellants.

Barnet Hodes, James A. Velde, and J. Herzl Segal, all of Chicago, for appellees.

MATCHETT, Justice.

Relators appeal from an order striking their petition for mandamus and dismissing their suit. The prayer of the petition was that proper officials of the Board of Education, the City of Chicago and Cook County be required to issue a voucher and checks for their benefit in the total amount of $519,301.55 with interest.

The petition shows by facts set up in detail relators were the owners of premises (subdivided for apartments) in Chicago which the Board of Education by resolution decided to appropriate for school and playground purposes. To that end the Board filed a petition in the Circuit Court of Cook County under the Eminent Domain Act, Ill.Rev.Stat. c. 47, § 1 et seq., on July 16, 1930; on July 16, 1931, the Board procureda judgment that the school board pay to relators the sum of $370,797.51 with costs and interest as damages for taking their property. Pending the proceeding the board, both before and after the judgment of July 16, 1931, committed acts which amounted to taking possession of the premises; the premises were permanently damaged by its acts, and these things were done with the acquiescence of relators, the owners. The acts are stated in detail and it is unnecessary to restate. We assume the acts as recited amounted to the exercise of dominion over the premises as the petition avers.

The judgment entered directed the Board of Education to pay within 90 days compensation as fixed by the judgment order. The board did not and has not paid. On March 4, 1932, the board procured the entry of an order vacating the judgment for compensation, and certain of the defendants thereupon filed their petition under section 10 of the Eminent Domain Act to obtain payment (not of the judgment for compensation) but for costs, expenses and attorneys' fees as provided by that Act. In this proceeding on October 3, 1932, they obtained judgments in their favor in the aggregate amount of $17,000, which have been paid in full.

This petition to compel by writ of mandamus payment of the judgment entered July 16, 1931, was filed September 8, 1939. Prior thereto on July 28 of the same year, the Circuit Court entered an order setting aside the order of March 4, 1932.

We are not aware of any theory upon which mandamus would lie to compel the payment of this judgment under the circumstances related. The proceeding to condemn was under the Eminent Domain Act and not under the Local Improvement Act, Ill.Rev.Stat.1941, c. 24, § 84--1 et seq. The difference between judgments entered under these statutes is fundamental and fully explained in Rieker v. City of Danville, 204 Ill. 191, 68 N.E. 403. The essential difference is that under the Local Improvement Act after the return of the verdict the petitioner is required within 90 days to elect whether a final judgment shall be entered or the proceeding dismissed, while under the Eminent Domain Act there is no such provision, the statute providing that the right to enter shall be conditional upon the payment of the amount of compensation fixed by the verdict of the jury. Under the Local Improvement Act the judgment entered upon election of the petitioner is final and of the same nature as any other judgment for the payment of money. The judgment under the Eminent Domain Act is purely conditional in its nature. Under that Act the petitioner may enter only upon the payment of the compensation. There is no authority in the statute to enter final judgment against a petitioner who refuses to pay. The court may in its discretion dismiss the suit upon failure to pay and may assess damages as provided by the statute, but the judgment entered is purely conditional. The brief for petitioner indicates the distinction between these two...