Yaggy v. City of Chicago

• Decision Date: 18 December 1901
• Citation: 194 Ill. 88,62 N.E. 316
• Parties: YAGGY v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

194 Ill. 88

62 N.E. 316

YAGGY

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Dec. 18, 1901.

Appeal from Cook county court; R. H. Lovett, Judge.

Petition by the city of Chicago for the levy of an assessment for a local improvement. Levi W. Yaggy objected to the confirmation of the assessment, and from an order overruling his objections he appeals. Reversed.

Samuel J. Howe, for appellant.

Robert Redifield and Charles M. Walker, Corp. Counsel (Edgar B. Tolman and William M. Pindell, of counsel), for appellee.

CARTWRIGHT, J.

On May 31, 1900, the city of Chicago filed its petition in the county court of Cook county for the levy of an assessment to pay the cost of plastering curb walls, grading and paving Blue Island avenue from Ashland avenue and Twenty-Second street to South Western avenue, in said city, pursuant to an ordinance passed May 14, 1900. Section 44 of the act concerning local improvements, in force July 1, 1897, which authorized the proceeding and under which it was begun, provided that the petitioner should cause at least fifteen days' notice to be given prior to the time at which the confirmation of the assessment would be sought, by publishing the same at least five successive days in some daily newspaper of said city, to be directed by order of the court. Laws 1897, p. 117. On the same day that the petition was filed the court, in pursuance of said provision, on motion of the attorney for petitioner, entered the following order: ‘It is ordered by the court that Chicago Democrat be and is hereby designated as the daily newspaper published in the city of Chicago in which publication of the special assessment notice in this proceeding required by law to be given, and it is hereby ordered that said publication be made in the said Chicago Democrat in accordance with law.’ No notice was published in said newspaper so designated by said order for the giving of notice. On July 12, 1901, the cause came on to be heard in the county court, and appellant entered his special appearance for the purpose of questioning the jurisdiction of the court, on the ground that publication of notice had not been made as required by law, and for no other purpose whatever. Petitioner offered evidence of the publication of a notice for five successive days, commencing June 4, 1901, in the Daily Labor World, a daily newspaper printed and published in the city of Chicago. Appellant objected to the publication and proof thereof, and his objection was overruled, to which ruling he excepted. The court, on motion of petitioner, vacated and set aside said order of May 31, 1900, directing publication in the Chicago Democrat. On July 13, 1901, the court overruled the objection of appellant, and he preserved an exception, and thereupon refused to further participate in the hearing of the cause, on the ground that the court had no jurisdiction to try it. His default was entered, and on Joly 23, 1901, the court submitted to a jury the question of benefits. On a finding by the jury for the petitioner the assessment roll was confirmed by the court. During the term at which judgment was rendered, appellant entered his motion to set aside the judgment, on the ground the court had no jurisdiction. The motion was overruled and exception taken, and this appeal rollowed.

Notice was not published in accordance with the statute in force at the time the proceeding was begun and the order for publication in the Chicago Democrat was made, but it is claimed that the court acquired jurisdiction newspaper, under the provisions of an other newspaper, under the provisions of an amendment of the statute enacted after the order was made. Section 44 was amended by an act approved and in force May 9, 1901, by omitting the provision that...