Village of Bradley v. New York Central Railroad, 295 Ill. 264 (1920)

Dec. 21, 1920 · Illinois Supreme Court · No. 13572

295 Ill. 264

(No. 13572.

Reversed and remanded.)

The Village of Bradley, Appellee, vs. The New York Central Railroad Company, Appellant.

Opinion filed December 21, 1920.

Special assessments—petition for supplemental assessment can not be disposed of before original proceeding is settled. There can be no trial on the question of benefits on a supplemental assessment to pay a deficiency while the question of benefits in the original proceeding is pending on appeal, and as in such case it is not certain that there will be a final judgment against the objector, legal objections interposed on the supplemental proceeding cannot be considered. ' '

Appeal from the County Court of Kankakee county; the Hon. John H. Gillan, Judge, presiding.

W. R. Hunter, for appellant.

E. A. Marcotte, Village Attorney, (John H. Beckers, and Morton T. Culver, of counsel,) for appellee.

Mr. Chief Justice Cartwright

delivered the opinion of the court:

The appellee, the village of Bradley, filed a petition in the county court of Kankakee county for the levy of a special assessment to pay the cost of a system of brick and tile-pipe sewers,- with a brick outlet sewer leading from the village to the Kankakee river. The appellant, the New York Central Railroad Company, with other.property owners, filed legal objections, which were sustained and judgment was entered dismissing the petition. The village appealed, and the judgment of the county court was reversed and the cause was remanded, with directions to- overrule all legal objections except those relating to the distribution of the cost of the improvement between the public and the property benefited. ( Village of Bradley v. New York Central Railroad Co. 277 Ill. 608.) The cause was re-instated in the county court, and, the directions having been complied with and a revised assessment roll filed, there was a trial by jury on the question of benefits and a verdict finding that the property of appellant was benefited and fixing the amount of benefit. From that judgment the appellant prayed and perfected, an appeal to this court. On September 15, 1919, the village passed an ordinance reciting that it had advertised for and received bids for the improvement, from which it appeared that the amount assessed as benefits was insufficient to pay the cost of the improvement and the amount of compensation awarded and providing for a "supplemental assessment to pay the cost of the deficiency, which was estimated at $166,852.24. The village petitioned the county court for the levy of a special assessment for the deficiency, and the appellant filed both legal objections and objections on the question of benefits. The legal objections were overruled and there was a trial resulting in a verdict for $1776.33, and judgment was entered accordingly. The appeal from the original assessment is still pending in this court and the question whether that assessment was right has not been determined.

It is manifest there could be no trial on the question of benefits on a supplemental assessment to pay a deficiency while the question of benefits in the original proceeding resulting from the same improvement' remains unsettled. The whole benefit would be an aggregate sum, and a jury could not determine, what a part of the benefit would be without knowing what the other part amounts to. The question of benefits in the original proceeding remains unsettled, and it would be impossible to say whether a further sum should be added for benefits. The proceeding, so far as benefits to the appellant is concerned, was premature, and while legal objections were interposed they will not be considered, because it is yet undetermined whether there will be any final judgment against the appellant.

The judgment is reversed and the cause remanded to await the disposition of the original proceeding.

Reversed and remanded.