Village of Dolton v. S. Ellen Dolton Estate
| Decision Date | 23 June 1928 |
| Docket Number | No. 18627.,18627. |
| Citation | 331 Ill. 88,162 N.E. 214 |
| Parties | VILLAGE OF DOLTON v. S. ELLEN DOLTON ESTATE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Special assessment proceeding by the Village of Dolton, wherein the S. Ellen Dolton Estate and others presented objections. From a judgment denying a motion to vacate a judgment of confirmation theretofore entered, objectors appeal.
Appeal dismissed in part, and judgment affirmed in part.
Appeal from Cook County Court; J. S. Van Keuren, Judge.
Daniel S. Wentworth and Henry O. Nickel, both of Chicago, for appellants.
Joseph P. Savage, Henry L. Wells, and Charles G. Hendricks, all of Chicago, for appellee.
This appeal is from an order of the county court of Cook county denying a motion to vacate a judgment of confirmation entered in a special assessment proceeding under the Local Improvement Act (Smith-Hurd Rev. St. 1927, c. 24, § 698 et seq.), instituted to improve, by paving, a section of Forest avenue, in the village of Dolton.
The first question to be considered arises out of a motion to dismiss the appeal, which was taken with the case. The appeal bond was executed by the ‘S. Ellen Dolton Estate, by Catherine S. Dolton, Emma L. Dolton, Carl H. Thomsen, trustees under will,’ and eight individual objectors. The motion ot dismiss the appeal is based on a claim of misjoinder and nonjoinder of parties. The judgment order recited a prayer for an appeal by certain objectors, and it was granted in the following language:
‘Prayer for appeal is hereby allowed upon said objectors, jointly, severally, or any of them, filing herein, within thirty (30) days from this date, appeal bond in the penal sum of three hundred ($300) dollars, with surety thereon to be approved by the court.’
Ten lots along the line of the proposed improvement were assessed in the name of the ‘estate of S. Ellen Dolton,’ and objections were filed with reference to the assessment against them by Carl H. Thomsen, one of the administrators of the estate of S. Ellen Dolton, deceased. A reduction was made in the amount assessed against these lots by agreement of counsel, and the objections were overruled and the judgment of confirmation entered. There was a substitution of counsel, and a motion to vacate the judgment of confirmation. This motion was overruled, and the appeal was prayed and granted as stated.
[1][2][3] It is urged that the trustees under the will of S. Ellen Dolton were not parties to the proceeding and made no prayer for an appeal. The Local Improvement Act requires that the several parcels of land affected shall be assessed in the name of the persons who paid the general taxes for the preceding year, and that notice shall be given such persons. They may not be the owners of the property; so section 46 of the act provides that any person interested in any tract affected by the special assessment may file objections. The will of S. Ellen Dolton does not appear in the record, nor is there any evidence showing that the three persons who purport to be trustees under her will are such trustees, or that they have any interest in the premises in the lots assessed. There is no allegation in the assignments of error to the effect that these persons are trustees holding title to these lands, or that they are otherwise interested.
One cannot assign error on a record in a special assessment proceeding, in the absence of evidence in the record or an allegation in the assignment of errors showing that he has an interest in the lands affected, or that he was a party to or injured by the judgment of confirmation. Gibler v. City of Mattoon, 167 Ill. 18, 47 N. E. 319;People v. Harrigan, 294 Ill. 171, 128 N. E. 334. The appeal by the three persons purporting to act as trustees of the S. Ellen Dolton estate must be dismissed, but the fact that these improper parties joined in the prayer for appeal and in the appeal bond does not require a dismissal of the appeal as to the proper parties. Willenborg v. Murphy, 40 Ill. 46. Prior to the filing of the appeal bond now before us a bond was filed by Carl H. Thomsen individually. As we have stated, there is nothing to show his interest in the lands involved, and so his attempt to prosecute an appeal was a nullity, and has no effect upon this appeal.
[4] It is further contended that the appeal should be dismissed, because the objectors who prayed the appeal are not named in the judgment order, and therefore it cannot be determined whether those filing the appeal bond are those who prayed and were granted the appeal. The judgment of confirmation entered August 5, 1927, shows that the only property under consideration was that represented by Brannan, Markman & Maloney, attorneys, and it contains a list of the tracts involved and the amount of the assessment against each tract as reduced. Subsequently these attorneys withdrew and Daniel S. Wentworth entered his appearance for the same property owners and moved on their behalf for the vacation of the judgment. When this motion was denied, the appeal was prayed on behalf of these same property owners, and some of these same persons filed the appeal bond. While the names of the parties praying the appeal are not set out in the order, there is sufficient evidence in the record to identify them, and that is all that is necessary. ‘Id certum est quod certum reddi potest.’ This appeal was prayed in accordance with established practice in such cases, and no harm has resulted or can result to anyone. The record shows that those signing the appeal bond were objectors, and the appeal should not be dismissed because of the informality of the order.
[5] Appellee also contends that the appeal was not perfected in accordance with the statute and the order allowing the appeal, because all the objectors who were granted an appeal did not join in the appeal bond. It is insisted that a number less than the whole cannot jointly perfect an appeal. The statute 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...
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