Goodwillie v. City of Lake View

Mr. Justice Shope delivered the opinion of the Court: The first question presented by this record which we shall •consider is, whether the objections filed by appellants were filed in apt time. They were filed after the entry of the order of court upon the supplemental petition finding the amount necessary to pay the condemnation money previously awarded in the cause for property taken or damaged in opening the •contemplated extension of the avenue mentioned, and for costs accrued and to accrue in the case and in collection of assessments, and appointing commissioners to make an assessment of benefits, and after their report and service of notice of the filing thereof. This proceeding was under section 53, of arficle 9, of the City and Village act, and by that section it is qirovided that such proceedings for the assessment of benefits •shall, as near as may be, be the same as is provided in the •preceding sections of the article in other cases of special assessment. Before there can be judgment confirming the assessment, the statute requires the service of notice upon all persons affected thereby, and prescribes the proof of such service. It is then provided that all persons interested in any real estate •affected by such assessment may appear and file objections -to the report of the commissioners making the same. It is •clear that this is the first opportunity that the land owner has -to be heard. In this case, on the filing of the supplemental petition, the order appointing commissioners, etc., was entered the same day, and unless the party happened to be in court, no opportunity was afforded for objection, nor is any such 'Opportunity contemplated by the statute. Ho answer or plea is required to be filed, or contemplated in this proceeding, the objections to be filed upon the incoming •of the report of assessment taking the place of other formal pleading, hence no notice is required to be given of the filing •of the petition. But notice of the return of the assessment must be given, when objection may be made. The 30th section, after providing that any person interested in the real ■estate affected may appear and file objections to the report, provides that the court may make such order in respect to the ■filing thereof as may be made in regard to the filing of pleas in cases at law. If no objections are filed, default is to be entered, and a judgment confirming the assessment follows. The same rule, in effect, applies in cases of condemnation. Smith v. Chicago and Western Indiana Railroad Co. 105 Ill. 520. By section 33, the court before which the proceeding is pending is given authority, at any time before final judgment, to modify, alter, change, annul or confirm any assessment returned, or cause it to be recast by the same commissioners, •or may appoint others, and may make all orders necessary to the making of a true and .just assessment, etc. It must follow that the orders prior to the entry of judgment are interlocutory, and subject to be set aside at any stage of the proceeding for any good cause made to appear. Until the filing •of the report, objections could not be filed questioning the correctness or regularity of the assessment as a matter of course, but we are of opinion that all objections, whether pertaining -to the amount of benefits assessed, or going to the right of the municipality to have them assessed, or in any way affecting the validity of the assessment, may be filed at any time before ■default is entered, as contemplated by the statute. The matters to be submitted to the jury lie within a narrow compass, and include only the amount of benefits assessed or to be assessed. If it appears that the premises of the objectors are assessed more or less than they will be benefited, or more or less than their proportionate share of the cost of the improvement, “the jury shall so find, and also find the amount the premises should be assessed.” No other verdict is required, or can be rendered. It is clear, therefore, that only such objections as question the amount of benefits returned against the objectors’ premises can create the. necessity for submission, of the assessment to. a jury. Follansbee v. Chicago, 62 Ill. 288, and eases cited. The amount of benefits returned against appellants’ property not being questioned by any of the objections filed, the court should have passed upon the objections, and if it was-found they were not well taken, and no others were filed by leave of the court, have entered default against these objectors and entered judgment confirming the assessment. However, of the error in submitting the assessment of benefits to appellants’ property to a jury they can not complain, for the reason that the same was not increased by the verdict, and they are in nowise prejudiced thereby. Nor can appellants be heard to complain that the court refused to hear evidence in support of their objections after the jury were impaneled and before the city had made its case. Waiving the question whether the objections were not waived by not insisting on them before the jury were impaneled, such evidence was addressed solely to the court, and the effect of its ruling was to overrule the objection. This evidence offered, but rejected by the court, being preserved by bill of exceptions, the rulings may be reviewed. If it was made to appear, at any time before final judgment, that the precedent steps in the cause were not sufficient to justify the assessment, it was the manifest duty of the-court to set aside the assessment, vacate its previous orders-if improperly entered, and dismiss the supplemental petition if not properly filed, and no legal right existed to maintain an assessment. It remains only to consider whether the objections filed, as supported by the offered evidence, show no right in the city to have the benefits to appellants’ lands assessed. The only objections necessary to be considered are those predicated upon the alleged fact, that in the original proceeding for condemnation the city failed to acquire title to all the land necessary to the opening of the avenue, from which the supposed benefits sought to be assessed must flow. The evidence offered tended to show, and for the purposes of this case it may be treated as showing, that lot 2 and part of lot 3, described in the original petition for condemnation, as owned by appellant David Goodwillie, were, in fact, at the filing of such petition, and since, the property of Cecilia Goodwillie, and not of David Goodwillie, and that lot 5, in assessor’s subdivision, etc., described as being owned by Victor Lawson, in said petition, was in fact owned by Matilda Lawson, Carrie Lawson, Norman I. Lawson and Victor Lawson. Cecilia Goodwillie, Matilda, Carrie and Norman I. Lawson not having been parties to the original proceedings, there was therefore no condemnation of their interest in said lots. It is insisted, first, that the judgment in the condemnation proceeding formed no basis for the special assessment of benefits, there being no estimate of the cost of the improvement, —that is, the opening of said avenue,—as provided in and by section 20 of said article, and the court therefore erred in entering its order finding the amount to be raised by special assessment, and appointing commissioners to apportion the same to contiguous lots, etc., according to benefits accruing from such improvement; and second, that the city not having acquired, by condemnation or otherwise, the right of way to open and locate said extension of said avenue, no assessment , of benefits could properly be made. In original proceedings for special assessment of benefits, under the statute, an estimate must be made in the manner prescribed by section 20, otherwise there can be no basis for the gross amount to be assessed, or for its apportionment to or upon lots or tracts of land benefited; but it is manifest that where the proceeding is by way of supplemental petition, in the same proceeding in which the condemnation has been or may be had under section 53, (Guild v. City of Chicago, 82 Ill. 472,) “praying the court to cause * * * an assessment to be made for the purpose of raising the amount necessary to pay the compensation and damages which may be or shall have been awarded for the property taken or damaged, with the costs of the proceeding, ” and there has been judgment of condemnation, the amount or amounts thereby awarded, with the estimated costs of the proceeding and of collecting the assessment, as provided in said section 53, will furnish the only proper basis for the assessment of benefits. In such case, no estimate under section 20 is contemplated or required. Here, the supplemental petition was filed asking for an assessment to be made to pay the compensation and damages already awarded. The judgment in the condemnation proceeding was final, conclusive and binding upon the appellants, and all others who were parties thereto, until reversed, vacated or set aside in some direct mode known to the law. No motion was made in the court below to vacate, set aside or modify that judgment. Although a supplemental petition is filed in the condemnation proceeding, the relief sought thereby is supplemental and collateral to the proceeding in which the judgment of condemnation was rendered, and the questions arising in the original proceeding can not be relitigated upon the supplemental petition. It is for a distinct, separate purpose,— that is, to raise funds to pay the judgment already entered. In the condemnation proceeding the court had jurisdiction of the subject matter and of the persons of appellants, and the judgment therein was binding and conclusive upon them, and they can not be permitted to attack it thus collaterally. Undoubtedly, if the court still retained jurisdiction over its judgment in the condemnation proceeding, upon proper application to the court it would have corrected its judgment, vacated or set it aside, as justice might have required. It appears from the offered evidence, that appellant Good-willie had no vested interest in the lots against which the-benefits were assessed. At most, he had but an inchoate right of dower. It is true, it is alleged that one of the tracts was acquired by his wife before the passage of the present Dower act; but there is nothing tending to show that he is tenant by the curtesy initiate, and if he was, at common law, since the passage of the separate property act of 1861, such right would not be an interest in the land. (Bozarth v. Largent, 128 Ill. 95.) However, the compensation awarded for the two lots of which he was the alleged owner was $8000, while the benefits assessed against the same was the sum of $7009.25,—being-$990.75 less than the damages and compensation awarded him. In this state of case he seeks to defeat the assessment of benefits without attempting to set aside or vacate the judgment in the condemnation proceeding. But in respect of both appellants, and all other lot owners affected, the amount assessed as special benefits could not exceed the benefits arising to each particular tract by reason of making the improvement. If the amount of benefits equaled or exceeded the sum required to be raised, each tract would be assessed its. proportionate share of such sum; but if the sum required exceeded the benefits, then such tract could be assessed only such sum as it was benefited, and the residue must be paid by the city from its corporate funds. In this case it was found and returned by the commissioners appointed by the court, that the benefits to each tract, and to the tracts affected in the aggregate, was less than the sum required to pay the compensation awarded, and that a residue remained after assessing the benefits to accrue for such improvement, to be paid by the city. It therefore necessarily follows that each tract and lot was assessed for all the benefits that would accrue to it by the opening of this avenue as contemplated by the ordinance, and the city would be estopped by this proceeding from again seeking to assess benefits therefor against the same property. Although it may be found that the city has not procured the right to open the street over and across certain of these lots, and may have to expend further sums of money to acquire such right, it can not, after having, by its supplemental petition, confirmed the judgment in' the condemnation case, and required the entire benefit to appellants’ lots inuring from the proposed improvement to be assessed against them, again require a further assessment of benefits upon or against the same lots for the same purpose. By the assessment, made by the proper authority, the lots assessed will have paid the full benefit conferred by the improvement, and no other assessment could thereafter be made for the same. It can not be presumed that the amount of compensation awarded in the condemnation proceeding would have been less if the parties alleged to be the owners of the three lots before mentioned had been parties thereto, or that the amount required to be assessed to pay such compensation was increased by reason of the failure of the city to make them parties to that proceeding. There is no pretense that more was awarded as compensation for the property taken or damaged than was just compensation. If other condemnation proceedings must be instituted, or right of way acquired by further expenditure of money, it is manifest that these lot owners, having already been assessed the full amount of benefits that will inure to their property by the improvement, can not be prejudiced thereby, and that such increase of amount, whatever it may be, must be provided by the city from other sources. It follows, that under this proceeding, or by it, appellants have not been prejudiced. In any event, their property was liable to be assessed for benefits, and they be required to pay the full amount thereof, and as a matter of justice and right it can not be important whether they are required to pay it for acquiring title to a portion, only, or to all of the land taken for the proposed improvement. The proceeding was instituted and is authorized by section 53 only for the purpose of paying compensation awarded or to be awarded in the condemnation proceeding; and although the condemnation proceeding may have related to only portions of the land and soil necessary to be taken for the purposes of the improvement, the judgment in the condemnation proceeding is made by the statute the basis of the assessment of special benefits contemplated. If the matters here sought to be interposed had been objected to in the condemnation proceeding, it might have formed a matter of substantive defense, and the court, for the purpose of effecting the condemnation as against all the parties interested, have required the city to bring the parties now alleged to be the owners into that proceeding, to the end that its judgment should be final and conclusive as to them, also. But because this was not done, and the city failed to acquire the right to take the lots or tracts of land as against such other parties, does not render the judgment of condemnation void as to parties thereto. Nor does the fact that the city may have to acquire the title of other parties to the same or other property affect the judgment in the condemnation proceeding, or prevent the assessment of benefits to pay the amount of condemnation awarded in such proceeding. The city, by its acts, as before seen, is estopped from disputing or questioning the validity of such judgment. It follows, that we are of opinion that the judgment in the condemnation proceeding furnished a proper basis for the assessment of benefits against appellants’ lots and lands, and that no error has intervened in the entry of the order appointing commissioners and fixing the amount to be raised, of which appellants can complain. If there is error, it is, at most, error without prejudice. In respect of the second point, we are of opinion that, the assessment being for the single purpose of paying compensation and damages awarded in the condemnation proceedings," it is not important, as already said, that by that proceeding title to all of the land necessary to be taken for the purposes of the improvement should be acquired. It may well be that. the residue of the land not included in the condemnation proceeding may be acquired by other means. It is only where municipal or other authority seeking condemnation is unable to agree with the owner as to the compensation to be paid, that condemnation proceedings become necessary or proper. It could not have been within the contemplation of section 53 that it would be any defense against special benefits assessed ■ for the purpose of paying compensation awarded, that there were other lands, not included in such proceeding, that might thereafter have to be acquired before a street or avenue could be opened or improvements made. Village of Hyde Park v. Borden, 94 Ill. 26, and Holmes v. Village of Hyde Park, 121 id. 128, hold, that in original proceedings for the special assessment of benefits it is not necessary that the city or village should have acquired title to the soil to be graded and paved as a street, before assessments for special benefits accruing from such improvement could be assessed. In the latter case it was said: “Whether the compensation shall be made to the owner of the soil for the land taken for the street, before or after the assessment for its improvement, can not make that assessment either larger or smaller; and so, whether title to the soil entered upon for the purposes of the street has been heretofore or remains to be hereafter acquired, is a distinct question from that of the benefits and damages to result to adjacent land owners from the improvement of such street, and the latter has no dependence upon the former.” Here, however, the assessment is"for the single purpose of paying the compensation awarded for the land taken, and it can not, perhaps, be said, as it was in the ease mentioned, that the assessment of benefits does not de-' pend upon whether the title to the soil has been obtained. But in respect of property to which title is not acquired by condemnation proceeding, precisely the same result must follow as in the original proceedings for the assessment of benefits. It is undoubtedly true that the city acquired, by this condemnation proceeding, all the title to the several parts of lots sought to be taken and included in such proceeding, as against all persons who were made parties thereto. It can not, therefore, affect the right of the city to make an assessment for the payment of compensation awarded, that there may be other tracts or lots, or other owners whose title has not been acquired or determined by such proceeding. It is also objected, that the city not having acquired title to all the property necessary to be taken, it is unjust and inequitable to require appellants to pay their assessments before the city acquires the same. That is not a matter proper for consideration here. If it is apprehended that the city can not or will not acquire title, so that the avenue may be opened, and that the special assessment will be expended without corresponding benefit to the public, it can not be doubted that a court of equity will afford adequate relief. Holmes v. Village of Hyde Park, supra. It is next insisted that the court erred in estimating the probable costs thereafter to accrue in the proceeding, and in collecting the assessment. It is sufficient to say that the bill of exceptions does not contain the evidence upon which the court acted in adjusting such amounts; and it not appearing by the bill of exceptions that it contains all of the evidence offered, it must be presumed that there was evidence sufficient to justify the finding and order of the court. The judgment of the court below confirming the assessment will accordingly be affirmed. Judgment affirmed.