People ex rel. Raymond v. Fuller

Mr. Justice Ricks delivered the opinion of the court: The sole question here presented is whether or not a former judgment confirming a special assessment for the same improvement under a previous and repealed ordinance can be pleaded in bar on an application for a judgment of sale under a second ordinance. This court has held in a number of cases that on the application for judgment of confirmation of an assessment a former judgment of confirmation under a former valid ordinance could be interposed. (People v. McWethy, 165 Ill. 222; McChesney v. City of Chicago, 161 id. 110; City of Chicago v. Nicholes, 192 id. 489.) It has also been held that if the former judgment of confirmation sought to be interposed was based upon a void ordinance, and on account of the invalidity of which the void ordinance had been rescinded or repealed and the judgment of confirmation thereunder set aside at a subsequent term of court to that of its rendition, such judgment would not be a defense to the application for confirmation under a valid ordinance. (Gage v. City of Chicago, 193 Ill. 108; City of Chicago v. Nodeck, 202 id. 257.) These cases seem to establish the rule that the proper time to urge in defense a former judgment for an assessment for the same improvement is at the time of the application for confirmation of the new assessment. That the defense here sought to be interposed should have been made at the application for confirmation of the assessment would seem to be the natural deduction from the provisions of the statute in relation to special assessments for local improvements. Section 48 of the act (Hurd’s Stat. 1899, p. 373,) provides for the hearing of certain specified objections upon that application, and then concludes, “together with all other questions arising in such proceeding,” and by the provisions of the act all objections so made, except those relating" to the benefits to property, are to be heard and determined by the court without a jury. The hearing at the confirmation is the only hearing to be had prior to application for judgment for sale for delinquencies of property owners in the payment of the special tax or assessment. And relative to this latter proceeding, and regulating the practice at such latter hearing, section 66 of the act provides: “No defense or objection shall be made or heard which might have been interposed in the proceedings for the making of such assessment, or the application for the confirmation thereof, and 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 practice is well settled, then, that the defense here urged and held sufficient by the county court was such a one as could and should have been heard at the application for confirmation of the assessment. It was not a matter that had arisen since the confirmation, but existed at the time the judgment of confirmation was had, and could have then, if at all, been successfully made, and had the court refused to entertain it, or had an erroneous judgment been entered upon such defense or objection, the same could have been reviewed by this court; and we think, under the express provisions of section 66 above quoted, appellee was precluded from urging the defense now made to the application for judgment for sale. We think Gross v. People, 193 Ill. 260, applicable to and decisive of this point. Such a defense is a collateral attack upon the original judgment of confirmation. People v. Green, 158 Ill. 594; Clark v. People, 146 id. 348; Casey v. People, 165 id. 49; People v. Lingle, id. 65; Leitch v. People, 183 id. 569; Pipher v. People, 183 id. 436. In Leitch v. People, supra, after noting the provision of section 66 of the Local Improvement act, supra, we said (p. 570): “Upon the application to confirm the assessment appellant had the undoubted.right to appear in the county court and call in question the validity of the petition presented to the board of local improvements, and as he was notified as required by law, it was his duty to appear and make objection if he desired to contest the validity of the proceedings, but as he failed to appear on application to confirm, under the plain language of the statute he is concluded from calling in question any of the proceedings anterior to the judgment of confirmation, except the jurisdiction of the court rendering the judgment. Indeed, it has been held in a number of cases that on an application to confirm the assessment, if the court has jurisdiction to render the judgment the judgment will be conclusive on the land owner, and he can not call in question the regularity of the proceedings prior to the judgment on a subsequent application for judgment and sale.” In the case at bar there is no question as to the regularity of the proceedings or of proper notice to the appellee. The court had jurisdiction of the subject matter and the person, and the plea that is now sought to be interposed was one that could have then been urged as a bar to the proceeding. In Pipher v. People, supra, we said (p. 437): “A judgment confirming a special assessment is not open to collateral attack on grounds not affecting the jurisdiction of the court which pronounced it, and unless a want of jurisdiction is shown the judgment of confirmation is binding upon all concerned. (Doremus v. People, 161 Ill. 26.) Objections to the validity of such a judgment, when interposed in a proceeding like this for a judgment and order of sale of delinquent property, constitute such collateral attack on the judgment of confirmation. In the case of ordinary taxes there is no judicial hearing prior to the application for judgment and order of sale, but in the case of a special assessment the law provides for such a hearing when the officer authorized to spread the assessment has done so and the assessment roll is returned to the court. Before the owner is concluded, notice must be given as provided by the statute, and he' may have a trial by the court of any legal objection to the assessment, and by a jury of the justice of the amount assessed against his property. The assessment may be modified, set aside, changed or confirmed, but when the court has acquired jurisdiction its judgment cannot be attacked collaterally.” In the same case it is there further said" that this is not only the rule based on general principles, but because of the express provision of section 66 of the Local Improvement act. We think it the settled practice in this State in this class of proceedings that the defense here urged must be made at the time of the application for confirmation of the assessment, and that at any other stage in the proceedings such defense comes too late. It is important to all concerned that the validity of special assessments should be settled in this preliminary hearing, and the case at bar may well be considered as illustrating the necessity and wisdom of the application of such a rule. On the faith of such judgment of confirmation contracts were let and the work and improvement made pursuant to the ordinance, and to leave the questions open that might and should have been settled on the application for confirmation and allow them to be urged against the judgment for sale, is to make that uncertain which the legislature evidently intended should be certain and a protection to all persons acting on the faith thereof. The judgment of the county court of Cook county is reversed and the cause remanded to that court, with directions to enter a judgment for sale. Beversed and remanded.