Markley v. City of Chicago, 167 Ill. 626 (1897)

Oct. 12, 1897 · Illinois Supreme Court

167 Ill. 626

John A. Markley v. The City of Chicago.

Announced orally at Springfield October 12, 1897.

1. Appeals and errors—payment of assessment installment is not a waiver of right of appeal. A party to a special assessment proceeding may prosecute a writ of error to reverse the confirmation judgment within five years after its entry, notwithstanding he has paid the first installment of the assessment.

2. Parties —intervention—purchaser of assessment vouchers cannot be made party to record on appeal. A purchaser of special assessment vouchers who was not a party to the assessment proceeding can not be made a party to the record on an appeal from the judgment of confirmation by the lot owner.

3. Practice—in Supreme Court—when stranger may file brief. The purchaser of special assessment vouchers, while not entitled to become a party defendant in an appeal by a property owner from the judgment of confirmation, has such a pecuniary interest that he will be allowed to file a brief in support of the judgment.

Motion by Stephen W. Rawson to be made a party to the record and that the writ of error be dismissed.

Rich & Stone, for plaintiff in error.

Stephen W. Rawson, pro se.

Mr. Justice Craig

announced the opinion of the court:

This is a motion by Stephen W. Rawson to be made a party defendant to the suit, and he asks that the writ of error be dismissed. Rawson was not a party to the original proceeding. The original proceeding was instituted by the city of Chicago under an ordinance to make special assessments to pay for the improving of a certain street in the city. The assessment was divided into five installments. The plaintiff in error, Markley, was one of the property owners whose property was assessed for the purpose of paying for the improvement. As said before, Rawson, who now asks to be made a party, had no property that was assessed and was not connected with the proceeding in any manner whatever. It appears, however, that the assessment was divided into five installments. The first installment was paid by the plaintiff in error, Markley, and the vouchers issued for the other four installments have been purchased by Eawson, who now desires to intervene. He claims that for the reason that Markley paid the first installment and made no objection to the confirmation of the assessment when the judgment was confirmed, he is now estopped from prosecuting this writ of error. The statute gives any person who was a party to the proceeding when the assessment was made and confirmed the right to sue out a writ of error within five years, to reverse the judgment of confirmation. Markley, plaintiff in error, availed himself of that right, as he had the right to do, and although be paid the first installment it did not prevent him from afterwards, if he thought the judgment was erroneous, suing out a writ of error for the purpose of reversing it. It is true that Eawson now has the vouchers for four installments of the assessment, and is now entitled tó collect the balance of the installments if the judgment was properly rendered and is not erroneous, but we think that the plaintiff in error has a right to prosecute his writ of error. We see no reason, and no authority has been cited to show, why Eawson has a right to intervene in the suit, and he cannot be made a party to the record. There is no authority that we are aware of under which he could be made a party. However, as he is interested in the assessment, we think perhaps he may be entitled to file a brief in the case. Of course, the suit is prosecuted on behalf of the city of Chicago. It is the city against Markley. Eawson may, however, appear and file a brief if he desires, and in that way sustain the judgment if he can. Leave will be granted him to file a brief, but so far as being made a party or dismissing the appeal is concerned, the application will be denied.

Motion denied.