Prescott v. the City of Chicago.

• Decision Date: 30 September 1871
• Citation: 1871 WL 8095,60 Ill. 121
• Parties: ELI S. PRESCOTTv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

60 Ill. 121

1871 WL 8095 (Ill.)

ELI S. PRESCOTT

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon JOSEPH E. GARY, Judge, presiding.

Mr. JOHN BORDEN, for the appellant.

Mr. M. F. TULEY, Corporation Counsel, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was an application made at the March term, 1871, of the Superior Court, by the city collector of the city of Chicago, for judgment against delinquent lands, upon a special assessment warrant for grading a roadway 36 feet wide in Southwestern Avenue, or Ogden Avenue, from its intersection with West Twelfth street to its intersection with the south line of section 23, township 39 north, range 13 east of the third principal meridian, and from its intersection with the south line of said section 23 due west to the present western city limits, as the same has been widened and extended by the order of the common council passed July 26, 1869, and constructing a road bed in said described roadway, of sand, broken stone, gravel, etc.

To the application for judgment, objections were filed. Upon the hearing, the objectors introduced a certified copy of the proceedings in the matter of widening Southwestern Plank Road, in evidence, and some oral testimony, all of which is preserved by bill of exceptions, and it is claimed that the proceedings to widen were void. The record of these proceedings contains defective certificates of printer. They fail to state the date of the last paper containing the notice, and this is the only defect in the proceedings of any substantial character which we are able to discover. We are disinclined to recognize the propriety of allowing those former proceedings to be attacked in such collateral way, because we can not say, from the mere production of the record, that the parties who were affected by them may not have estopped themselves by voluntary payment and acquiescence, or that the city may not have obtained the proper releases. The principle of allowing the title of the city to be drawn in question in such collateral way, would extend to every case of the improvement of a street, and require the city to show a good title to the street, as a condition precedent to making a special assessment for such improvement.

Another reason for reversal urged is, that the assessment in question is void, because the proposed improvement extends beyond the city...