Wolcott v. Village of Lombard

• Decision Date: 16 November 1944
• Docket Number: No. 27868.,27868.
• Citation: 57 N.E.2d 351,387 Ill. 621
• Parties: WOLCOTT et al. v. VILLAGE OF LOMBARD et al.
• Court: Illinois Supreme Court

387 Ill. 621

57 N.E.2d 351

WOLCOTT et al.

v.VILLAGE OF LOMBARD et al.

No. 27868.

Supreme Court of Illinois.

Sept. 19, 1944.

Rehearing Denied Nov. 16, 1944.

Action by M. A. Wolcott and others against the Village of Lombard and others challenging the validity of a sewer ordinance of defendant village and related statutes. From an order dismissing the complaint, plaintiffs appeal.

Affirmed.Appeal from Circuit Court, DuPage County; Win G. Knoch, judge.

Weightstill Woods, of Chicago, for appellants.

Clarence F. Martin, of Chicago, for appellees.

FULTON, Chief Justice.

A complaint in chancery was filed in the circuit court of DuPage county on October 30, 1943, for the purpose of challenging the validity of a sewer ordinance of the village of Lombard and, in general, it makes charges against article 60 of the Cities and Villages Act, Ill.Rev.Stat. c. 24, § 60-1 et seq., to which it refers. Article 60 contains eighteen sections but the complaint does not point out any particular section of the said article as being invalid. Other relief is asked by was of injunction, accounting and direction for disposition of certain assessment moneys. The suit was instituted by one M. A. Wolcott, individually and on behalf of a class of taxpayers similarly situated. On November 8, 1943, the appellee village of Lombard filed a motion to strike the complaint and dismiss the case on the ground that the complaint was substantially insufficient in law. A hearing was had on November 9, 1943, and the court entered an order dismissing the complaint. On November 15, 1943, a notice of appeal was filed by the appellants from the order of November 9, sustaining the motion and dismissing the complaint of appellants. On the same date a praecipe for a complete record was filed by appellants in the office of the circuit clerk of DuPage county. On December 6, 1943, a motion was filed by appellants seeking to vacate and reconsider the order of dismissal entered on November 9, which included a request to withdraw the notice of appeal. The order overruling said motion made no reference at all to the latter request and no appeal is properly taken from that order. In the motion to vacate and reconsider filed on December 6, the appellants set forth a large amount of new matter and many allegations which were not in the original complaint. They attach numerous exhibits to the motion and complain that the statute and ordinance complained of violated at least thirteen sectionsof the State and Federal constitutions, enumerating them by article and section numbers. None of these sections were mentioned in the original complaint.

After the case reached this court, a motion was made by the village of Lombard to strike certain portions of the appellants' transcript of record and abstract. This motion was filed on March 18, 1944, and presented to the court on March 20, 1944, at which time by order of the court the motion was taken with the case. After examining the record carefully, it is quite apparent that the motion to strike should be allowed.

Paragraph (1) of section 74 of the Civil Practice Act, Ill.Rev.Stat.1943, chap. 110, par. 198, provides that: ‘Every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or othwise, shall hereafter be subject to review by notice of appeal.’ Paragraph (2) of section 76 of the said act (§ 200(2) provides an appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court and that after being duly perfected no appeal shall be dismissed without notice and no step other than that by which the appeal is perfected shall be deemed jurisdictional.

Rule 33 of this court, Ill.Rev.Stat.1943, c. 110, § 259.33, prescribes in detail the contents and form of notice of appeal, and by Rule 34 (§ 259.34) reference is made to the notice of appeal as the instrument by which the appeal is perfected. In view of these statutory provisions and the rules of this court, we do not see how this court has any jurisdiction to review the proceedings of the lower court which occurred after the notice of appeal was filed and served. Cases announcing that an appeal shall be deemed perfected when the notice of appeal is filed in the lower court are 162 East Ohio Street Hotel Corp. v. Lindheimer, 368 Ill. 294, 13 N.E.2d 970, and Francke v. Eadie, 373 Ill. 500, 26 N.E.2d 853. When the notice of appeal is filed, the case proceeds in the court of review not as a new case but as a continuation of the one that was pending in the trial court. The jurisdiction of the reviewing court to take the case attaches when the notice of appeal is filed in the trial court.

Under subsection 5 of Rule 33 of this court, there is provision for making amendments to the notice of appeal in a manner whereby the amendments shall relate back to the time of the filing of the notice of appeal. The subsection concludes as follows: ‘No amendment to the Notice of Appeal specifying and describing orders, determinations, decisions, judgments, decrees or parts thereof not specified or described in the original Notice of Appeal shall be permitted after the expiration of ninety days from the entry of such orders, decrees, judgments, determinations, or parts thereof sought to be specified or described in the amendment.’ Without passing upon the question as to whether or not in this case the appellants could have availed themselves of the above section pertaining to amendments, there was no request made for permission to amend appellants' notice of appeal during the ninety-day period allowed, and there is nothing in the notice of appeal filed which would in any way refer to or incorporate the motion filed December 6 to vacate and reconsider the order of November 9.

The suggestion by the appellants that the practice of raising constitutional questions by motion and placing them upon the record of the trial court is approved in the case of Consolidated Coal Co. v. People, 185 U.S. 203, 22 S.Ct. 616, 46 L.Ed. 872, is without merit. That case was tried upon an agreed statement of facts and it was stipulated that the validity or constitutionality of a statute was involved, and, on a motion made in arrest of judgment, the invalidity of the statute was specifically set forth. However, that case was tried long before the adoption of the Civil Practice Act in the State of Illinois, and the procedure in that case has no similarity to the questions arising upon this record.

In view of the foregoing, the motion by the appellees to strike from the record of this case pages 28 to 38, both inclusive, of the transcript of record and also that portion of the abstract of record beginning with ‘motion to vacate and reconsider’ on page 28 of the abstract to and including ‘order denying motion to vacate and reconsider’ on page 41 of said abstract, should be allowed and such portions of the record will not be considered by the court in this opinion.

The only questions that can be considered on this appeal are those arising upon the record as it existed on November 9 1943, when the court granted the motion of appellees to strike the original complaint and dismissed the cause for want of equity. As the trial court certified that the validity of a statute and the validity of a municipal ordinance are involved, the appeal comes directly to this court.

While the appellants are appealing from an order holding their complaint insufficient, they do not attempt to argue that question but assume that it is sufficient and in their briefs argue the merits of the case based not only on the original complaint but upon all matters attempted to be raised on their motion to vacate and reconsider the order of November 9.

The ordinance under attack is known as ordinance No. 424 of the village of Lombard, Illinois, passed October 11, 1943. It provides for the issuance of $50,000 sewerage revenue bonds of the village for the...