The Vill. of Hyde Park v. Dunham.

• Decision Date: 30 September 1877
• Citation: 85 Ill. 569,1877 WL 9621
• Parties: THE VILLAGE OF HYDE PARKv.DUNHAM.
• Court: Illinois Supreme Court

85 Ill. 569

1877 WL 9621 (Ill.)

THE VILLAGE OF HYDE PARK

v.DUNHAM.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

This was a proceeding to condemn property, and assess the damages occasioned thereby, for the widening of a certain street in the village of Hyde Park. Dunham, whose property was affected by the proceeding, prosecutes this writ of error.

Mr. C. H. WILLETT, and Messrs. LEAMING & THOMPSON, for the plaintiff in error.

Mr. THOMAS S. MCCLELLAN, and Mr. WILLIAM HOPKINS, for the defendant in error.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

Two preliminary objections are raised by the defendant in error--first, that a writ of error does not lie in this case; second, that a proper bill of exceptions was not prepared and filed in apt time.

If no right of appeal is allowed, (which is also questioned by defendant in error) it is clear that a writ of error lies, for a writ of error is a writ of right, and can be prosecuted in all cases upon judgments of the circuit court, where no other mode of review is provided. Unknown Heirs of Langworthy v. Baker, 23 Ill. 487; Hall v. Thode, 75 Id. 173.

If the right of appeal is allowed, as we think it is, it is by virtue of sec. 129, art. 9, of the chapter entitled “Cities and Villages,” (Rev. Stat. 1874, p. 234) which also recognizes, in language equally explicit, the right to prosecute a writ of error. So, in either view, the objection that a writ of error does not lie, is untenable.

It does not affirmatively appear, from the record, when the bill of exceptions was signed and sealed, and we must, therefore, presume it was presented to the judge, for that purpose, within proper time. Underwood v. Hossack, 40 Ill. 98. If the bill of exceptions was, in fact, made or filed under circumstances not authorized by the law, motion should have been made in the court below to strike it out of the record; and that not having been done, we can not do otherwise than regard it as rightfully a part of the record. Myers v. Phillips, 68 Ill. 269; Wilder v. House, 40 Id. 92. The presumption, from the face of the bill of exceptions, is, that the exceptions therein noted were taken on the trial, and in the order and at the time therein purported. It professes to give a true statement of everything that occurred on the trial, and as it occurred; and we can not reconcile these statements with the idea that some of these things may have occurred at a different time. The record imports absolute verity. And when it is recited it was proposed to prove certain facts by A B, to which there was objection, but the court overruled the objection and permitted the testimony to be given, and that exception was taken to the ruling of the court, the fair and only reasonable construction is, that this all occurred in the order of the statement; and so occurring, the objection and exception must have been urged and taken at the proper time and place.

The point is made by the plaintiff in error, that the court below erred in compelling it to enter upon its proof as to the question of damage to lots, pieces and parcels of real estate not taken by the proposed improvement, and not mentioned in its petition, and to which the plaintiff in error claimed no damage was done, before the defendant in error had given any testimony in support of the claim first made in the cross-petition, of damage to such property. This, if true, we think, is well taken. Plaintiff in error was not required to describe property, in its petition, which was not taken or damaged, and if other property than that therein described was brought into the case on cross-petition, it was incumbent on the party thus bringing it in to show, in the first instance, that it was taken or damaged, and that he was, therefore, entitled to judgment on that account. The case would seem to be analogous to that wherein cross-bill is filed, after answer, praying for relief which can not be granted under the prayer of the original bill. In such case, so far as we call to mind, it is uniformly required that the complainant in the original bill limit his proof, in the first instance, to the allegations in that bill; but as to the cross-bill, he introduces evidence, only, to support his answer thereto and to overcome the case first made by the evidence of the defendant introduced to sustain the allegations of the cross-bill. Here, then, the plaintiff in error was not required, in the first instance, to go into evidence with regard to property not described in its petition, and was entitled to give evidence in rebutting that offered by defendant in regard to such property.

But the defendant in error insists that, as a matter of fact, no damages were awarded, save in regard to property described in the petition of plaintiff in error, and that the question must, therefore, be narrowed down to this. The fact, as appears from the record, is as counsel insist; still, evidence was introduced in regard to the damage done to property not taken, and it is impossible to say that this evidence may not, in some degree, have affected the minds of the jury in coming to the conclusion announced by their verdict. It is very true, such evidence has no connection, either legally or logically, with the result announced; but it is plain, from an examination of the evidence, the verdict was a compromise, and, in such instances, it is but too often that trivial circumstances and considerations having no proper connection with the actual issues have important influence, and it is for this reason that all irrelevant evidence is required to be excluded from the consideration of the jury. But, inasmuch as the plaintiff in error covered the same ground by evidence given in chief, under the ruling of the court, we are not prepared to say that we should reverse merely because the order of introducing the evidence was not in accordance with what we regard as the better practice.

The object of this proceeding was to condemn property, and assess the damages occasioned thereby, for the widening of a certain street in “Hyde Park,” one of the suburban villages of Chicago. Dunham, the defendant in error most largely interested, laid out and platted a sub-division, having a street, extending east and west on the north side, called Fiftieth street; then a tier of lots; then an alley; then a tier of lots; then what he denominated “Madison Avenue Park,” being of the same length, east and west, as the sub-division, and 139 feet wide; then a tier of lots, and then Fifty-first street, which is the street proposed to be widened. Seventeen feet are to be taken from the south end of the tier of lots between “Madison Avenue Park” and Fifty-first street, and added to the street, thus making it 100 feet in width. The lots, as laid out, are 145 feet in depth, and, when the 17 feet are taken off, will, of course, be that much...