City of Chicago v. Smale , 248 Ill. 414 ( 1911 )

Mr. Justice Dunn

delivered the opinion of the court:

The city of Chicago filed in the county court its petition for a special assessment to pave a portion of Forty-ninth street. After hearing objections the court found that a part of the property involved was assessed more than its proportionate share of the estimated cost and reduced the assessment of such property in various amounts, averaging nineteen per cent. Thereupon, at the April term, 1909, a judgment of confirmation of the entire assessment roll as modified, amounting to $61,187.65, was entered. On May 28, 1909, at a subsequent term, upon motion of the city, an order was entered which purported to vacate and set aside this judgment of confirmation, to reduce nineteen per cent the assessment against all property which had not theretofore been reduced, and to render a new judgment of confirmation of the entire assessment roll so modified, amounting to $54,667.55. The pavement having been completed, the board of local improvements filed their certificate, under section 84 of the Focal Improvement act, showing the cost of the improvement, together with the estimated amount required for the payment of interest on vouchers, to be $41,872.65, the amount assessed for the improvement to be $54,667.55 and the excess of the assessment to be $12,794.90, together with a reduced assessment roll showing the distribution of such excess upon the basis of an assessment in accordance with the order of May 28, 1909. In the meantime the property owners whose assessments had been reduced upon their objections had made a motion to vacate the order of May 28, 1909, setting aside the original judgment of confirmation and reducing the other assessments, which motion had not been heard. They also filed objections to the approval of the certificate of the board of local improvements and of the distribution of the excess. The motion to vacate and the objections to the certificate were heard together, were both sustained, the board of local improvements' was ordered to file a new certificate and to • distribute the excess of the assessment over the cost in accordance with the original judgment of confirmation, and the city appealed, insisting that the court erred in vacating the order of May 28, 1909, and in sustaining objections to the final certificate.

We held in City of Peoria v. Smith, 232 Ill. 561, that the Local Improvement act requires the question of benefits and pro rata cost between the various pieces of property to be settled in the confirmation proceedings, and the rebate, if any, to be divided pro rata in accordance with the judgment of confirmation. The vacation of the ,order of May 28, 1909, is immaterial, for it was void on its face. The jurisdiction of the county court in special assessment proceedings is statutory, and no valid order can be made unless jurisdiction for that purpose is shown by the record. The. jurisdiction of the county court over this special assessment proceeding expired with the April term, 1909, and the rights of all the parties were then fixed. If jurisdiction was subsequently acquired to modify the judgment of confirmation entered at that term, it was essential to the validity of any order'made that such jurisdiction should be shown by the record. Nothing of the kind appears. The record shows simply that upon the motion of the petitioner the original judgment was set aside and a new and different judgment entered. Such order was void. It had no effect upon the judgment of the previous term, but might properly be disregarded by any person at any time. The rebate must be apportioned in accordance with the judgment of confirmation, without regard to the order of May 28, 1909.

The judgment is affirmed. J &

r , , m , Judgment affirmed.