Village of Winnetka v. Murph

• Decision Date: 13 October 1938
• Docket Number: No. 24490.,24490.
• Citation: 369 Ill. 455,17 N.E.2d 42
• Parties: VILLAGE OF WINNETKA v. MURPHY et al.
• Court: Illinois Supreme Court

369 Ill. 455

17 N.E.2d 42

VILLAGE OF WINNETKA

v.MURPHY et al.

No. 24490.

Supreme Court of Illinois.

Oct. 13, 1938.

Proceeding on the application of the Village of Winnetka for confirmation of special assessment to which Carroll D. Murphy and others filed objections.From a judgment of confirmation of special assessments against their property, the objectants appeal.

Reversed.Appeal from Superior Court, Cook County; Frank H. Hayes, judge.

Mason & Mason, Raymond J. Goss, Pope & Ballard, and Philip J. McKenna, all of Chicago (George A. Mason, Charles O. Butler, and John H. Commings, all of Chicago, of counsel), for appellants.

Tolman, Chandler & Dickinson, of Chicago (Frederick Dickinson, Howard B. Bryant, and Alex Elson, all of Chicago, of counsel), for appellee.

FARTHING, Justice.

This is an appeal from a judgment of confirmation of special assessments against the property of appellants.The proceedings were brought under section 42a of the Local Improvement Act, Ill.Rev.Stat.1937, chap. 24, § 744, and involve the condemnation and improvement of certain land for a parking lot at a railway station.The strip of land is approximately 750 feet long and 120 feet wide measured at right angles, and lies adjacent to the right of way of the Chicago and Northwestern Railway Company to which it belongs.

On July 21, 1936, pursuant to a resolution of its board of local improvements, the village of Winnetka adopted an ordinance authorizing proceedings to condemn the entire tract and to levy a special assessment to improve it as a parking lot for automobiles.This land lies west of the right of way and is at the railroad station in Winnetka.

The suit was filed August 31, 1936.The report and assessment roll were filed on April 1, 1937.In it the estimated value of the 120-foot strip was fixed at $45,000.Negotiations between the village and Charles P. Megan, trustee of the property of the railway company, resulted in a contract on June 15, 1937, and a separate agreement, the effect of the two being that the village was to pay $45,000 to Megan, as trustee, for the westerly 90 feet of the 750-foot strip.The village was to have the use of the easterly 30 feet until it was needed by the trustee for railroad purposes.The trustee was to build and maintain three wooden stairways on the right of way connecting three sidewalks across the 30-foot strip with the station platform.If it became necessary to take the 30-foot strip for railroad purposes, or to remove the wooden stairs, some other adequate means of access to the platform was to be provided.

Without in any way amending the ordinance authorizing the filing of the petition for special assessment and condemnation, a judgment was rendered on July 15, 1937, in the condemnation proceeding, and the terms of the agreements between the railway's trustee and the village were incorporated in that judgment.The value of the land taken was fixed at $45,000.The objectors' motions for a jury trial and to offer evidence on the question of compensation were denied.

The Village of Winnetka and Joseph W. Hicks have moved to dismiss this appeal because Charles P. Megan, trustee, and certain other defendants and objectors were not served with a notice of appeal, and were not named as defendants and appellees in the notice of appeal.

Section 56 of the Local Improvement Act, as amended in 1935, Ill.Rev.Stat.1937, chap. 24, § 758, provides that in special assessment proceedings the ‘judgments shall have the effect of several judgments as to each tract or parcel of land assessed, and no appeal from any such judgment shall invalidate or delay the judgments, except as to the property concerning which the appeal is taken.’

A special assessment against land is a judgment in rem, (St. John v. City of East St. Louis, 50 Ill. 92;Gibler v. City of Mattoon, 167 Ill. 18, 47 N.E. 319); and the reversal of the judgment on appeal benefits only the objectors who were appellants.Harman v. People, 214 Ill. 454, 73 N.E. 760;Goldstein v. Village of Milford, 214 Ill. 528, 73 N.E. 758.Section 66 of the Local Improvement Act, Ill.Rev.Stat.1937, c. 24, § 770, remains the same as it was when Harman v. People, supra, was decided.That case involved an application for judgment and order of sale, and we said, quoting from section 66, ‘no errors in the proceeding to confirm not affecting the power of the court to entertain and consider the petition therefor, shall be deemed a defense to the application herein provided for.’

The contention that the appellants were required to serve a notice of appeal on all other parties to the special assessment proceeding besides the Village of Winnetka and to name them all as plaintiffs and defendants, in the notice of appeal is based on appellees' construction of our rules 33and34,Ill.Rev.Stat.1937, c. 110, §§ 259.33, 259.34.Rule 33 then provided that the parties must be named in the notice of appeal as they were in the trial court, and rule 34 that a copy of the notice of appeal should be served on each appellee and upon any co-party who did not appear as appellant.Where, as here, an appeal is taken from separate and distinct judgments, these provisions concern only the parties to those judgments.If this were an appeal from an order overruling a tax objection in the county court, the appellant would not be required to name all other objectors as parties to the appeal, nor to serve such objectors with a notice of appeal.The argument is without force, that objectors not appealing should have been served with a notice of appeal so that they might have appealed at less expense.

Appellees contend that since the village has the right to dismiss the whole proceeding within sixty days after the judgment on appeal, and that a reversal of the judgments appealed from might induce such action, the owner of the property condemned should have been made a party to the appeal, and should have been served with a notice of appeal.The village had a right to dismiss within ninety days after final judgment, if no appeal had been taken, and neither of these provisions makes the owner of the land condemned a party in interest in the several judgments against the lands of the objectors.The possible adverse effect of a reversal is too remote and too contingent to require the owner of the condemned land to be made a party to an appeal by objectors.The motion to dismiss must be overruled.

Appellants contend that the village did not comply with section 53 of the Local Improvement Act, Ill.Rev.Stat.1937, c. 24, § 755, which provides that no special assessment shall be made for any local improvement until the land necessary therefor has been acquired and is in possession of the municipality,...