Turley v. Arnold

• Decision Date: 11 November 1943
• Docket Number: No. 26739.,26739.
• Citation: 51 N.E.2d 176,384 Ill. 158
• Parties: TURLEY et al. v. ARNOLD et al.
• Court: Illinois Supreme Court

384 Ill. 158

51 N.E.2d 176

TURLEY et al.

v.ARNOLD et al.

No. 26739.

Supreme Court of Illinois.

Sept. 24, 1943.

As Modified on Denial of Rehearing Nov. 11, 1943.

Proceeding by John H. Turley and others, Commissioners of the Bay Island Drainage and Levee District No. 1, against Wilfred Arnold, Fred Sloan, and others for additional assessment for proposed improvements. From a judgment confirming a jury's verdict assessing benefits, plaintiffs appeal, and defendants Sloan and others cross-appeal.

Reversed and remanded with directions.Appeal from Mercer County Court; Max Kedder, Judge.

Wood, McNeal, Warner & Gehlbach, of Moline, for appellants.

Virgil C. Lutrell, of Chicago, and Hebel & Hebel, of Aledo, for appellees.

GUNN, Justice.

The county court of Mercer county rendered a judgment confirming the verdict of a jury assessing benefits to owners of property in the Bay Island Drainage and Levee District No. 1. Plaintiffs, the commissioners of the district, have appealed and the defendants, thirteen owners of lands in the district, have prosecuted a cross appeal.

This proceeding was instituted under section 37 of the Levee Act. Ill.Rev.Stat.1941, chap. 42, par. 37. August 12, 1940, plaintiffs filed their amended petition for an additional assessment for proposed improvements. An order was entered finding that the pleading was in proper form and the clerk of the county court was commanded to give notice of a hearing on the petition, pursuant to statute. August 24, 1940, eleven property owners appeared specially and moved to dismiss the amended petition on the ground that the court had no jurisdiction because the notice of hearing on the amended petition was insufficient and did not conform to statutory provisions. The motion was overruled, and the property owners thereupon filed a motion to dismiss the amended petition on the grounds, among others, that it (1) did not contain an itemized statement of accounts made by the commissioners, showing the moneys received by the district and the manner in which they had been expended; (2) that the purported itemized statement of accounts incorporated in the amended petition disclosed on its face it indicated only the financial condition of the district as of March 30, 1940; (3) that the amended petition sought the construction of a new ditch known as the ‘Heiser Slough Seepage Ditch,’ purporting to be solely for the benefit of and for the purpose of giving more minute and complete drainage to a relatively small area of land within the district rather than being beneficial to the district as a whole, and (4) that the amended petition proposed improvements inherently separate and distinct from each other, rendering it impossible to intelligently plead to the merits of the pleading. The motion to dismiss was overruled. February 3, 1941, an order was entered continuing the hearing to March 3, 1941, and directing new notice. On the day last named thirteen property owners interposed objections to the amended petition. These objections were overruled and the cause was set for hearing on the question of whether the proposed drain or drains, ditch or ditches, or other works were necessary and would be useful for the drainage of lands proposed to be drained thereby for agricultural or sanitary purposes. Considerable evidence was introduced and an order was entered on July 8, 1941, granting the prayer of the amended petition and directing plaintiffs, as commissioners, to file an assessment roll on all the lands of the district for the improvements on or before August 25, 1941. The assessment roll was filed, as directed. Subsequently, defendants made a motion to dismiss the proceeding. This motion was denied. A jury was then impaneled. Plaintiffs offered in evidence the commissioners' assessment roll, and rested. This roll assessed the land from $1.53 to $2.03 an acre. Of the 139 units of land assessed in the district, 25 units were owned by defendants. Eleven witnesses testified in behalf of the defendants. Among them were three former commissioners of the district and one of the present commissioners, called as an adverse witness. The three former commissioners and other witnesses expressed the opinion that their lands would receive no benefits. On behalf of petitioners the present commissioners testied that the improvement would decrease the annual cost of pumping from 92 or 95 cents an acre to 75 cents an acre, and otherwise benefit the whole district. Thirteen other witnesses then testified in behalf of plaintiffs, several stating the amount of benefits from the proposed improvement to each parcel of land owned by defendants. The record discloses no one of these witnesses testified to benefits to any tract of defendants in an amount less than the amount their land was assessed. The total number of acres shown in the assessment roll was 18,874.65. Defendants owned 5,142.19 acres, and the total amount assessed against their property by the assessment roll was $8,512.71, or an average of $1.65 per acre. The jury assessed the benefits to objectors' property at $497.18, an average of little better than 9 cents an acre. The assessment roll was confirmed as to all landowners not objecting. After objectors' evidence was closed they requested a view of the premises by the jury, and over the objection of petitioners this was allowed by the court, and after the conclusion of all the evidence the jury was taken over the lands within the district. Appellants appeal to this court, and objectors file a cross appeal.

The cross appeal will first receive consideration. The contention is that the county court should have allowed a motion to dismiss the amended petition for insufficient notice given by the plaintiffs. However, a second notice was issued by the county clerk which complied with the statute. Failure to give proper notice does not deprive the court of jurisdiction. In the event of a defective notice the cause may be continued for a new notice. Pratt v. Harris, 295 Ill. 504, 129 N.E. 277;Donner v. Board of Highway Commissioners, 278 Ill. 189, 115 N.E. 831. The objectors appeared and contested the petition for the new work under section 37, and therefore waived the question of the court's jurisdiction over their persons and any right to question the sufficiency of the notice of the proceeding. England Pond Drainage District v. Hurst, 344 Ill. 610, 176 N.E. 733.

Defendants also insist that the commissioners failed to comply with section 37 of the Levee Act in setting out an itemized statement of accounts made under oath, showing the money received by the district and the manner in which it had been expended, which is required to be filed with the petition for an additional assessment. This statement is not jurisdictional, and even if the contention were well founded it was waived by appearing and contesting the assessment. Commissioners of Sny Island Levee Drainage District v. Shaw, 252 Ill. 142, 96 N.E. 984. It is also urged the amended petition included matter which should have been brought in a separate proceeding for subdistricts under section 59 of the Levee Act. It is claimed the amended petition calls for three distinct and separate projects for minute and more complete drainage of part of the land in the district, which should be done under section 59.

It is true that projects to furnish more minute and complete drainage to certain localities within the district should be brought under section 59 rather than section 37 of the Levee Act. People ex rel. King v. Leonard, 279 Ill. 159, 116 N.E. 623;Sangamon & Drummer Drainage District v. Illinois Central R. Co., 272 Ill. 374, 112 N.E. 64. Section 37 of the Levee Act, however, provides that upon proper petition the court, after a hearing, may order an additional assessment levied upon the land within the district, when it shall become necessary for the construction of additional work or the completion of any work already commenced. We have held that a proceeding under section 37 requires the benefit shall be to the whole district, as is required by section 5 in petitioning for the organization of a district, and that this question must be determined by the court upon a preliminary hearing. People ex rel. Fitton v. Ehler, 338 Ill. 67, 170 N.E. 1;Stack v. People ex rel. Talbott, 217 Ill. 220, 75 N.E. 347;People ex rel. King v. Leonard, 279 Ill. 159, 116 N.E. 623.

In this case the objectors appeared after their motions had been denied, and introduced evidence for several days, and at the conclusion of the evidence upon this preliminary question the court made a finding that the work proposed to be done in the amended petition was beneficial to the whole district and entered a decree accordingly. The evidence upon this question has not been preserved. The question of the validity of the order of the court in finding the proposed work was beneficial for the whole district can only be raised on direct appeal, and cannot be again considered on a hearing had for confirmation of the assessment roll filed by the commissioners. Commissioners of Savanna & York Drainage District v. De LaVergne, 298 Ill. 480, 131 N.E. 581;People ex rel. King v. Leonard, 279 Ill. 159, 116 N.E. 623.

The petition for additional work under section 37 of the Levee Act having been properly filed, and objections made thereto having been heard by the court, the latter had jurisdiction of the subject matter and the parties, and therefore the validity of this order cannot be assailed in a proceeding objecting to the amount of assessments as extended on the assessment roll. The cross appeal will therefore be denied.

Appellants urge the county court erred when it denied the motion to strike objectors' requests for view by the jury made at the close of objectors' evidence. In 1935 the General Assembly passed two acts relating to the view of premises by jury in proceeding under section 37 of the Levee Act. An amendment of June 28, 1935 (Session Laws 1935, p....