Vill. of Broadview v. Dianish

• Decision Date: 19 June 1929
• Docket Number: No. 18523.,18523.
• Citation: 335 Ill. 299,167 N.E. 106
• Parties: VILLAGE OF BROADVIEW v. DIANISH et al.
• Court: Illinois Supreme Court

335 Ill. 299

167 N.E. 106

VILLAGE OF BROADVIEW

v.DIANISH et al.

No. 18523.

Supreme Court of Illinois.

June 19, 1929.

Proceeding by the Village of Broadview against Joseph Dianish and others. From a judgment of confirmation and an order for possession of certain real estate, defendants appeal.

Affirmed.Appeal from Cook County Court; Fred B. Herbert, Judge.

Gallagher, Shulman, Abrams & Henry, of Chicago (Meyer Abrams, Maurice H. Daniels, and Vincent G. Gallagher, all of Chicago, of counsel), for appellants.

Langworthy, Stevens, McKeag & Hurley, of Chicago (B. F. Langworthy, of Chicago, of counsel), for appellee.

STONE, J.

This is an appeal from a judgment of confirmation and order for possession of certain real estate in a proceeding instituted by the village of Broadview under the Local Improvement Act. The proceeding was instituted for the purpose of straightening, widening, and deepening the channel of Addison creek, which extends through said village. The making of the improvement requires the taking of certain lands. The petition set out the parcels of land to be taken, and prays that steps be taken to ascertain just compensation for such land and to ascertain the property benefited by the proceeding, the amount of the benefits, and to levy an assessment therefor in accordance with the Local Improvement Act.

The village of Broadview is located in Cook county, and is a suburb of the city of Chicago. It lies east of the village of Westchester, south of Bellwood and Maywood, west of the Des Plaines river and north of Twenty-Second street. It consists of about 1,600 acres of land. The west boundary of Broadview is the road known as Puscheck road. This road extends from Harrison street south to Twenty-Second street, a distance of 1 1/2 miles. Addison creek is the natural drainage for approximately 15,000 acres of land, most of which lies north and west of the village of Broadview. The creek enters the village at its west boundary, runs in a southeasterly direction, and leaves the village at Twenty-Second street. It drains approximately the southeast one-third of the property of the village. Appellants' property lies in that part of the village. At times of heavy rains or spring thaws, the present channel of Addison creek is not sufficient to carry off the flow, and at such times water covers a wide area of the land. Addisoncreek flows into Salt creek, which in turn flows into the Des Plaines river. The ordinance calls for the straightening and deepening of Addison creek throughout the channel within the village of Broadview and in a southeasterly direction beyond the village limits to its conjunction with Salt creek, at Twenty-Fourth street.

Counsel for appellee have filed in this case a motion to dismiss the appeal, which motion, with suggestions for and against it, was taken with the case.

Counsel for appellants represented nine objectors, including Joseph Dianish, Thomas Ceska, and Joseph and Anna Vancura. There also appears as an appellant one Agnes Vancura. The record does not directly explain whether she is the same as Anna Vancura. It discloses that she is the owner of the property involved as block 5 in Mares & White's addition. Anna Vancura is not shown to own any property affected. As there is but one piece of property in that name affected by this improvement, we are of the opinion that there is but one person involved, and that is Agnes Vancura, and will so treat the record.

Counsel for the village base their motion to dismiss on the ground that the appeal bonds were not filed in accordance with the order of the court allowing the appeal, setting out that Joseph Dianish and Thomas Ceska have filed two joint bonds, one from the order of confirmation and the other from the order awarding possession of land taken. One separate bond was by Anna Vancura appealing from the order for possession of land, and one by Agnes Vancura appealing from the judgment of confirmation.

The record shows that on May 25, 1927, judgment was entered in the county court of Cook county confirming the assessment roll and making awards for lands taken; also giving appellee the right to take possession of the lands taken upon payment of the awards or depositing the same with the county treasurer. The record shows, also, that on the same day the awards for property taken were paid to those objectors who would receive them or deposited with the county treasurer as to others, and an order was then entered giving leave to the petitioner to take possession of the property involved. On the same day the objectors represented by attorneys for appellants moved that the order of the court for possession be stayed pending the appeal to the Supreme Court, which was denied, and the record then recites: ‘Now further come objectors represented by Gallagher, Shulman, Abrams & Henry, their attorneys, and severally and jointly pray an appeal from the entry of this order to the Supreme Court of Illinois, which joint or several appeal is hereby allowed on the filing of either a joint or several bond in the sum of $500 within twenty days from May 25, 1927, by the respective objectors represented by Gallagher, Shulman, Abrams & Henry, which appeal is hereby allowed.’ On the same day the following order was also entered, allowing an appeal from the entry of the judgment: ‘Now come objectors represented by Gallagher, Shulman, Abrams & Henry and object to each and every ruling of the court and to the entry of the judgment, which objections are overruled, and said objectors by their counsel then and there duly excepted. And now further come objectors represented by Gallagher, Shulman, Abrams & Henry, their attorneys, and severally and jointly pray an appeal to the Supreme Court of Illinois, which joint or several appeal is hereby allowed on the filing of a joint bond in the event of a joint appeal in the sum of $500, and on the filing of a bond in the sum of $500 by the respective owners of the parcels of land represented by the firm of Gallagher, Shulman, Abrams & Henry in the event of a several appeal, said bonds to be filed within twenty (20) days and to be approved by the court.’ The record shows that on the same day a separate bond was filed, signed by Anna Vancura, taking an appeal from the order of the court for possession. On that day another separate bond was filed, signed by Agnes Vancura, reciting that it is in an appeal from the judgment of confirmation against her property. On June 3 the joint bond of Thomas Ceska and Joseph Dianish was filed, reciting that they had appealed from a judgment of confirmation and order of taking land from them. On that day also the joint appeal bond of Ceska and Dianish was filed, reciting that they were appealing from the order of possession entered by the court in the case. On June 7 an election to proceed to take the property was filed by the village. These proceedings all appear in a single transcript of record filed in this appeal.

Counsel for appellee base their motion to dismiss this appeal, first, on the ground that appellants did not have a right to take a separate appeal from the order giving possession of their property, and cite section 31 of the Local Improvement Act (Cahill's Stat. 1927, p. 329). That section provides: ‘Such order shall not be appealable as a separate order, if the same be entered in time to be made a part of the record on appeal or writ of error from the judgment, or before the cause is taken under advisement upon hearing by the Supreme Court, but may be reviewed upon appeal or writ of error from the judgment.’

All orders were entered and appeals taken in time to be made a part of the record on appeal from the judgment of confirmation, and appellants had no right to a separate appeal from the order for possession. An appeal from a judgment of confirmation and condemnation is sufficient to review the order of possession, where such order can be called to the attention of this court before submission of the cause. A separate appeal from the order of possession is unauthorized and of no effect. A dismissal of such separate appeal is, however, unnecessary where, as here, bonds are filed on the same day appealing from the judgment and from the order for possession, as they will be treated as one appeal, and the judgment and order for possession will both be reviewed on the one appeal from the judgment.

The second ground urged for dismissal of the appeal is that nine objectors were allowed joint or several appeals on filing a joint bond in the sum of $500, and on filing a bond in the sum of $500 by the respective objectors in the event of a several appeal; that Thomas Ceska and Joseph Dianish, two of the objectors, filed a joint bond, and Agnes Vancura filed a separate bond. Section 95 of the Local Improvement Act (Cahill's Rev. St. 1927, c. 24, par. 227) provides: ‘Appeals from final judgments or orders of any court made in the proceedings provided for by this act may be taken to the Supreme Court of this State, in the manner provided by law, by any of the owners or parties interested in lands taken, damaged or assessed therein, and the court may allow such an appeal to be taken jointly and upon a joint bond, or severally, and upon several bonds, as may be specified in the order allowing the same.’

In a local improvement proceeding, the judgment of confirmation is against each parcel of land included in the assessment roll. The interests of the objectors in this case were distinct and separate. The right of appeal is statutory. It must therefore be asserted in strict conformity with the statute. The LocalImprovement Act, recognizing the nature of the interests as distinct, provides for an appeal that may join parties having separate interests or allow an appeal to each. There is no right in parties having separate and distinct interests in a lawsuit to join in an appeal unless expressly authorized by the statute and in strict conformity with the order of the court...