Goldstein v. Village of Milford

Mr. Justice Wilkin delivered the opinion of the court: The record shows that on June 23, 1902, a petition of the property owners owning a majority of the frontage along the line of the proposed improvement was presented to the board of local improvements and various steps were taken, as required by statute, for the levy of the assessment, but on August 11, 1902, the court sustained certain objections which had been filed to the application for a judgment of confirmation and the petition was dismissed at the cost of petitioners. On the same date, August 11, 1902, the original petition of the property owners was withdrawn from the files of the county court and re-filed with the board of local improvements. Resolutions, estimates and an ordinance were again passed,, based upon said petition, and application was again made to the county court for the confirmation of the assessment. Objections were again filed, and on September 26, 1902, the court sustained the same and the petition was again dismissed. On the same date the petition of the property owners was again withdrawn and filed with the board of local improvements, and resolutions, estimates and another ordinance passed and assessment levied and application made to the court for the confirmation of the same. Objections were filed thereto, which were overruled on October 29, 1902, and a judgment of confirmation duly entered. From that judgment one of the objectors, Gilbert Vennum, prosecuted an appeal to this court, and the judgment was reversed. (202 Ill. 423.) The principal contention of counsel for appellants is, that the ordinance which was the basis of the assessment was void for the want of a sufficient petition of property owners, as required by the statute. The assessment was levied under authority of an act entitled “An act concerning local improvements,” approved June 14, 1897, and acts amendatory thereto, as found in Hurd’s Statutes of 1903. (Chap. 24, secs. 507-605.) The village of Milford has a population of less than 10,000, and under the provisions of section 510 an ordinance for the improvement of its streets could not be adopted unless the owners of at least one-half of the property abutting on the line of the proposed improvement, and also a majority of the resident property owners affected by the improvement, had petitioned for the same. If the question as to the sufficiency of the ordinance as based upon the petition had been raised by direct appeal from the judgment of confirmation, as was done in the Vennum case, there could be no question that the judgment would have to be reversed, but the objections here urged were filed upon the application of the county collector for judgment and order of sale for delinquent installments,—a proceeding collateral to the judgment of confirmation. Section 572 provides that, pending application for judgment, “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, 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.” This statute has been applied by this court in many cases and is manifestly applicable to the facts in this case. (Lyman v. City of Chicago, 211 Ill. 209; Gage v. People, 207 id. 61.) Upon such applications all questions affecting the jurisdiction of the court to enter the judgment of confirmation may be urged, and we have held, whenever the question has been raised., that the lack of jurisdiction must appear upon the face of the record. (Thompson v. People, 207 Ill. 334; Walker v. People, 202 id. 34.) The want of jurisdiction did not appear upon the face of the record in this case, but appellants sought to show it by extrinsic evidence. This they could not do, and the court properly so held. It is next insisted by appellants that because the ordinance on which the assessment in question is based has been held invalid by this court in the Vennum case it must be invalid in this case, and upon the hearing they sought to offer in evidence the record in the Vennum case. The court sustained an objection to the evidence, and this ruling is assigned as error. Section 562 provides, with reference to judgments of confirmation, as follows: “Such judgment shall have the effect of several judgments as to each tract or parcel of land assessed, and no appeal from any such judgment or writ of error shall invalidate or delay the judgments except as to the property concerning which the appeal or writ of error is taken.” We have applied this statute in the following and other cases: Kelly v. City of Chicago, 148 Ill. 90; Phelps v. City of Mattoon, 177 id. 169; City of Chicago v. Nodeck, 202 id. 257.)’ The reversal of the judgment of confirmation upon direct appeal had no effect whatever upon the judgment of confirmation rendered by the court on the various pieces of property from which there was no appeal, and the court committed no error in refusing to admit in evidence the record in said Vennum case. The judgment of confirmation was not void, although it might have been set aside on appeal or error. The term at which it was entered had expired, and the court did not err in overruling the motion to vacate it. All of the objections filed to the application for judgment and order of sale were attempted collateral attacks upon the judgment of confirmation, and were properly overruled. The judgment of the county court will be affirmed. Judgment affirmed,