People ex rel. Kochersperger v. Colvin

Mr. Justice Wilkin delivered the opinion of the court: This is an appeal from a j udgment of the county court of Cook county refusing an application by the county collector for an order of sale of property belonging to appellee, returned as delinquent, for an installment of a special assessment levied by the city of Chicago for curbing a portion of Prairie avenue. The objections relied upon as sustaining the judgment below are, that “the special assessment upon which the application is based has not been confirmed as required by law,” and that the judgment of confirmation rendered is void. It is not denied that there was a judgment of confirmation entered on February 19, 1892, but it appears from the record that on the 25th of April following, a motion of the attorney for the city of Chicago that all orders heretofore entered in said canse be vacated and the petition dismissed was allowed; also, that on the 30th of the same month, on motion of the same attorney, it was ordered “that the order entered herein, dismissing the petition and vacating the orders heretofore entered in said cause, be and the same are hereby vacated and the said cause is hereby re-instated.” The contention on the part of the objector is, that the order of April 25 vacated the judgment of confirmation, and that the subsequent order setting aside the vacation and re-instating the cause did not revive the judgment of February 19. It is insisted on behalf of appellant that the order of April 25, being made after the term at which the judgment of confirmation was rendered, was a nullity for want of jurisdiction of the court to vacate its former judgment, and authorities are cited which are supposed to sustain this contention. We do not think them in point. Here was an attempt on the part of the city, which was the petitioner, to vacate a judgment in its own favor and dismiss its own proceeding, and, if the case was upon the docket at the April term, we know of no rule of law which would prevent the court from permitting it to do so if it saw fit. If, however, it had jurisdiction at that term to make the order, it would seem clear that if the parties were still before the court, (and there is nothing in this record to show that they were not,) it also had jurisdiction to make the second order vacating the first. When the first order was set aside and the cause reinstated upon the docket it was there just as it -would have been if the order of April 25 had never been made. There was, in our opinion, an order or judgment of confirmation of the assessment by the county court. The second objection is based upon the contention that the record shows that the estimate of the cost of the improvement was made prior to the passage of the ordinance. It is true, the certificate of the city clerk shows that the ordinance authorizing the improvement was passed on the 4th day of January, 1892, whereas the estimate of the commissioners was approved on the 26th day of October, 1891, which, of course, was several months prior to the passage of the ordinance. The report of the commissioners, however, shows that the estimate was made under an ordinance previously passed, and when the whole record is considered we think it sufficiently appears that the statement of the clerk that the ordinance was passed January 4, 1892, was a mistake. But if it were otherwise, we think it clear that this objection is one which could not be properly made for the first time upon application for judgment of sale for the delinquent assessment. Section 39, article 9, chapter 24, of the Revised Statutes of 1874, provides that the report of a delinquent special assessment by the collector “shall be prima facie evidence that all the forms and requirements of the law in relation to making said return have been complied with, and that the special assessment mentioned in said report was due and unpaid; and upon the application for judgment upon such assessment no defense or objection shall be made or heard which might have been interposed in the proceeding for the making of such assessment or the application for the confirmation thereof.” It is not claimed that the court did not have jurisdiction of the cause and of the parties when the judgment of confirmation was entered, and we have frequently held that, where such jurisdiction appears, no objection which could have been urged against the confirmation can be made against the petition of the collector for judgment of sale, which decisions simply give effect to the foregoing statute. (West Chicago Street Railroad Co. v. People, 156 Ill. 18, and cases cited; Kimball v. People, 160 id. 653, citing Fisher v. People ex rel. 157 id. 85.) It cannot be contended that this second objection, if valid, was not available to the objector upon the application for confirmation of the special assessment, and this case forcibly illustrates the wisdom of the statute and decisions above cited. If, as we think it may be fairly inferred from the record, the date January 4, 1892, was a mistake inadvertently made by the city clerk, it could then have been readily corrected without defeating the assessment. In our opinion neither of the objections interposed in the court below was valid, and the court erred in sustaining them and refusing the judgment applied for. The judgment will be reversed and the cause remanded, with directions to the court below to enter a judgment of sale as applied for. Reversed and remanded.