Pieker v. City of Danville

• Decision Date: 26 October 1903
• Citation: 68 N.E. 403,204 Ill. 191
• Parties: PIEKER et al. v. CITY OF DANVILLE.
• Court: Illinois Supreme Court

204 Ill. 191

68 N.E. 403

PIEKER et al.

v.CITY OF DANVILLE.

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Vermilion County Court; S. Murray Clarke, Judge.

Proceeding by the city of Danville against John Rieker and another to condemn certain property for the purpose of local improvements. From an order denying a motion to require petitioner to pay defendants' costs and attorney's fees upon dismissal of the petition, defendants appeal. Reversed.Keeslar & Acton, for appellants.

J. H. Lewman, City Atty., for appellee.

CARTWRIGHT, J.

The appellee, the city of Danville, filed in the county court of Vermilion county its petition, under the act concerning local improvements, in force July 1, 1897 (Hurd's Rev. St. 1899, p. 362, c. 24), for the appointment of two commissioners to act with the president of the board of local improvements in fixing the compensation for private property to be taken for opening and extending a street, and to assess benefits resulting therefrom. The commissioners were appointed and their compensation was fixed as provided by the act, and they reported that the appellant John Rieker, an insane person, was the owner of certain property (described in the report) to be taken for the improvement; and they fixed the compensation to be paid for the same at $1,605, and assessed benefits against his property at $274. Summons was issued to the appellants, the said John Rieker, and W. F. Rieker, his conservator. They appeared and filed objections to the report, and, a jury having been called, the evidence was heard, and a verdict was returned, finding the just compensation for the lands of John Rieker to be taken for the improvement to be $1,955, and that his lands would not be benefited in any manner by the improvement. Afterward appellee came into court and moved to dismiss its petition, whereupon appellants entered their motion that the court would make an order for the payment by appellee of the costs, expenses, and reasonable attorney's fees incurred in the defense of the petition, and for the payment of all taxable costs. The court refused to hear evidence of the costs, expenses, and attorney's fees paid or incurred by appellants in defense of the petition, and denied the motion. The motion of appellee was allowed, and the petition dismissed without costs.

The right to recover fees or costs rests upon statutes, and they cannot be allowed or recovered unless given by statute. Smith v. McLaughlin, 77 Ill. 596;Dobler v. Village of Warren, 174 Ill. 92, 50 N. E. 1048. The general statute relating to costs does not provide for the payment of expenses and attorney's fees, and does not include a proceeding like this, but it is contended that the provision concerning such expenses and fees in the act to provide for the exercise of eminent domain (Hurd's Rev. St. 1899, p. 837, c. 47) also governs the court in proceedings under the act concerning local improvements. Section 10 of the eminent domain act provides that if the petitioner shall dismiss the petition before the entry of the final order, or shall fail to make payment of compensation within the time named in such order, the court shall, upon application of the defendants, or either of them, make such order for the payment by the petitioner of all costs, expenses, and reasonable attorney's fees paid or incurred in defense of the petition as shall be right and just, and also for the payment of the taxable costs. We do not see how that statute can be made to apply to the local improvement act. The eminent domain act governs an entirely different class of proceedings, in which the procedure and practice are wholly different. The authority for requiring payment of costs, expenses, and attorney's fees is contained in a proviso to the section providing that, upon the verdict of the jury, the court shall order that petitioner enter upon the property condemned, and the use of the same, upon payment of full compensation within a reasonable time to be fixed by the court, and if the petition is dismissed before that order is entered, or if the petitioner fails to pay the compensation within the time named in the order, the allowance shall be made. The local improvement act provides for making improvements by special assessment, special taxation, or general taxation, to be prescribed in the ordinance providing for the improvement. Section 12 of the act provides that, if the ordinance shall require the taking or damaging of property, the proceeding for making just compensation therefor shall be as described in sections 13 to 33, inclusive, of the act. Those sections provide a complete code of procedure, different from that of the eminent domain act. The petitioner is allowed 90 days after final judgment as to all defendants to elect whether it will dismiss the proceeding, or enter judgment on the verdict. If the petitioner elects to enter the judgment, the judgment is final, whether the assessment be collected or not. The...