Philadelphia & R. Coal & Iron Co. v. City of Chicago

• Decision Date: 11 October 1895
• Citation: 41 N.E. 1102,158 Ill. 9
• Court: Illinois Supreme Court
• Parties: PHILADELPHIA & R. COAL & IRON CO. et al. v. CITY OF CHICAGO.

158 Ill. 9

41 N.E. 1102

PHILADELPHIA & R. COAL & IRON CO. et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from superior court, Cook county; Theodore Brentano, Judge.

Petition by the city of Chicago for confirmation of a special assessment. The Philadelphia & Reading Coal & Iron Company and the Lehigh Valley Coal Company filed objections, which were overruled, and they appeal. Affirmed.

Ullmann & Hacker, for appellants.

Walter L. Fisher, for appellee.

BAKER, J.

On April 9, 1886, the city of Chicago filed a petition in the superior court of Cook county to condemn certain property, therein described, for the purpose of operating, opening, and extending South Canal street, from Lumber street to Archer avenue, in pursuance of an ordinance passed by the council of said city March 15, 1886. The property was condemned, and a judgment for $178,271.98 was entered. A supplemental petition was filed in said court February 9, 1887, asking for an assessment on the property benefited, to raise the money necessary to pay the compensation awarded by the condemnation judgment. Commissioners were appointed. It was found that $183,216.18 was the amount to be raised, and an assessment roll was returned into court. Various property owners, including one of the two appellants in this case (Lehigh Valley Coal Company), filed objections to this assessment; and after a trial, which resulted in confirming the assessment, they appealed to this court. The judgment of confirmation was reversed on March 29, 1890, and the cause remanded. The ground of reversal was that benefits were assessed on the theory of the construction of a bridge across the south branch of the Chicago river, on the line of the street extension, whereas, in fact, no bridge had been built, or ordered to be built, or provided for in the ordinance. Hutt v. City of Chicago, 132 Ill. 352, 23 N. E. 1010. In the meantime the property owners who had not appealed had paid their assessments. The city thereupon ordered the construction of the bridge, and it was finally built, and paid for by general taxation. No transcript of the remanding order or mandate of this court was filed in the trial court within the statutory period of two years. Rev. St. c. 110, § 85. After the completion of the bridge, the city council of Chicago annulled the old assessment, and ordered steps to be taken to have a new assessment made to raise the amount already awarded in the condemnation judgment; and on January 9, 1894, an order was entered in the superior court finding that the city council had annulled the first assessment, and directing the same to be set aside, and also setting aside and dismissing various subsequent proceedings, and giving leave to file a new supplemental petition. Thereupon a new supplemental petition was filed. The court estimated the costs of the original condemnation suit proper (not including those of the former special assessment) and of the new assessment, and appointed new commissioners to levy an assessment de novo, and directed them to assess upon the property benefited the amount of the condemnation award ($178,271.98), together with the estimated costs of the proceedings. A new assessment was returned into court. Appellants interposed various objections to the confirmation of this new assessment upon their properties. These objections were all held untenable; and the result of the hearing of the questions of law before the court, and of the questions of fact before a jury, was that the new assessments were confirmed; and from the judgment of confirmation this appeal was taken. The two appellants, the Philadelphia & Reading Coal & Iron Company and the Lehigh Valley Coal Company, stand before the court in somewhat different attitudes. The former owners of the property now belonging to the first-mentioned corporation voluntarily paid the first assessment made thereon, amounting to $2,500. On the other hand, the other appellant, the Lehigh Valley Coal Company, was one of the numerous appellants in the old special assessment case of Hutt v. City of Chicago, supra, wherein the judgments for the assessments were reversed; and it has never paid any assessment on the property it owns. Therefore some of the questions at issue are raised by the first-named appellant; some, by the other; and some, by both.

Prior to the trial before the jury, the Lehigh Valley Coal Company made a motion, which was denied, that the proceedings be dismissed as to it, because judgment of confirmation was entered in 1889, which was reversed in 1890 by the supreme court, and no remanding order was filed within two years thereafter. The contention is that, by force of the premises, the cause stands abandoned under the statute, and a new suit is necessary, which must begin anew at the starting point, by the passage of a new ordinance authorizing a special assessment to raise the money necessary to pay for the property taken, to be followed by a new condemnation proceeding, and new award of compensation and damages for property taken or damaged, and culminating in a new assessment of special benefits. The statute is that, if neither party shall file a transcript of the remanding order within two years, ‘the cause shall be considered as abandoned, and no further action shall be had therein.’ Practice Act, § 85. In Koon v. Nichols, 85 Ill. 155, the court said: ‘The word ‘cause’ here means the particular suit in which the order is made; not that the cause of action shall be considered as abandoned, but only that such particular suit shall be considered as abandoned, and no further action shall be had therein.' A suit is an action or process for the recovery of a right or claim. The particular suit that was abandoned was the claim made by the city to recover the benefits that had before that tiem been assessed against the property of the appellants in the Hutt Case. The pleading in that particular suit was the supplemental petition, and that, of course, was abandoned, so far as the then appellants were concerned, by the failure to file the mandate. It was a particular suit that was ancillary to the condemnation case or proceeding. But the condemnation case was not abandoned. It had not been appealed from. Presumably, both the city and those whose property was taken or damaged were satisfiedwith the awards made therein. It was not the particular suit in which the order of reversal, was made. The right to levy an assessment for the extension of a street, as determined in the condemnation proceeding already had, unquestionably survived. That right was and is the cause of action; and, under the statute and the decision cited, the cause of action was not abandoned. As was said by us in Goodwillie v. City of Lake View, 137 Ill. 51, 27 N. E. 15: ‘Although a supplemental petition is filed in the condemnation proceeding, the relief sought thereby is supplemental and collateral to the proceeding in which the judgment of condemnation was rendered, and the questions arising in the original proceeding cannot be relitigated upon the supplemental petition. It is for a distinct, separate purpose; that is, to raise funds to pay the judgment already entered.’ It is true the supplemental petition is filed ‘in the same proceeding,’ but this is a mere matter of convenience, and is done only by virtue of a direct authority given by the statute. Rev. St. c. 24, art. 9, § 53. And although this court in Guild v. City of Chicago, 82 Ill. 472, says, ‘This assessment was in the same proceeding,’ yet it also there speaks of the ‘original petition in the condemnation proceeding’ and ‘the supplemental petition in the assessment proceeding.’ This was because there were two distinct and particular suits or proceedings, but joined or yoked together, as we have seen, simply for purposes of convenience. That, after the reversal and remandment and failure to file the mandate in the Hutt Case, the original ordinance was still in force when this new supplemental petition was filed, in January, 1894, and no new ordinance for the opening of the street was necessary, is clearly deducible from the decision of this court in Pardridge v. Village of Hyde Park, 131 Ill. 537, 23 N. E. 345. There was no error in overruling the motion of the Lehigh Valley Coal Company to dismiss this proceeding as to it.

The superior court also denied the motion of the Philadelphia & Reading Coal & Iron Company to dismiss the proceeding as to it, upon the ground...