| Ill. | Feb 17, 1904
delivered the opinion of the court:
The contention of the appellees is, that the proceeding had under the ordinance bearing date January 3, 1895, is a bar to this proceeding. We do not agree with such contention, but are of the opinion that the dismissal of said proceeding on February 6, 1897, put an end to the proceeding under the first ordinance. Bass v. City of Chicago, 195 Ill. 109" date_filed="1902-02-21" court="Ill." case_name="Bass v. City of Chicago">195 Ill. 109.
The city, after the verdict was returned and before judgment thereon, had the right, if it acted in good faith, to abandon the improvement and dismiss the proceeding. (7 Ency. of PL & Pr. p. 674; McChesney v. City of Chicago, 188 Ill. 423" date_filed="1900-12-20" court="Ill." case_name="McChesney v. City of Chicago">188 Ill. 423.) In each of the cases of Chicago, Rock Island and Pacific Railway Co. v. City of Chicago, 143 Ill. 641" date_filed="1892-10-31" court="Ill." case_name="Chicago, Rock Island & Pacific Railway Co. v. City of Chicago">143 Ill. 641, Chicago, Rock Island and Pacific Railway Co. v. City of Chicago, 148 id. 479, and Illinois Central Railroad Co. v. City of Champaign, 163 id. 524, relied upon-by appellees, judgment had been rendered upon the verdict and an attempt was made to get rid of the judgment after the term had expired at which it was rendered, and the court held that the judgment was an adjudication betvreen the parties which fixed the amount of compensation and damages; that while a party seeking to condemn is not bound to take the property at the price fixed by the judgment, if the property is taken the question of compensation and damages is res judicata, and that the question of compensation and damag'es cannot be opened up and re-tried by filing a new petition,—that is, the effect of the judgment cannot be gotten rid of by commencing a new proceeding. In this case the-proceeding was dismissed before judgment, and the rule is, that it is the judgment which concludes the parties, and not the verdict of the jury. (Sayler v. Hicks, 36 Pa. St. 392.) Mr. Greenleaf, in his work on Evidence, (vol. 1, sec. 510,) says: “The rule is, that where the verdict was .returned to a court having power to set it aside, .the verdict is not admissible without producing a copy of the judgment rendered upon it, for it may be that the judgment was arrested or that a new trial was granted.” “A verdict cannot ordinarily operate as an estoppel, or even be given in evidence, until it has received the sanction of the court and passed into judgment,” (2 Smith’s Lead. Cases, p. 687,) “because it may happen that judgment was arrested or a new trial granted.” (Buller’s Nisi Prius, 234.)
It is urged, however, that the first ordinance remained in force and that the city could not pass a new ordinance for the improvement covered by the first ordinance while that ordinance remained in force. ■ We think that argument is fully answered by the fact that the first ordinance was- repealed in express terms by the last ordinance and that more than seven years had elapsed between the dates of the passage of the two ordinances, and more than five years elapsed from the date of the dismissal of the first proceeding and the date of the passage of the second ordinance. In McChesney v. City of Chicago, supra, it was apparent the improvement was not abandoned, but that it was the intention of the city to immediately re-enact the ordinance and proceed to construct the identical improvement covered by the first ordinance. If it appeared here that the first proceeding was dismissed and the ordinance which formed the basis of that proceeding was repealed solely with the view of immediately passing a new ordinance for the identical improvement, with the intention of instituting a new proceeding, the purpose of which was to enable the city to escape the effect of the verdict of the jury rendered in the first proceeding and to enable it to again submit the question of compensation and damages to another jury, under the authority of the McChesney case, supra, it would be clear that the improvement provided for by the first ordinance had not been abandoned by the city in good faith, but where a period of more than five years has elapsed since the first proceeding was dismissed and the second • proceeding commenced, we are not disposed to hold that the proceeding under the first ordinance can be interposed as a bar to the second proceeding under a new ordinance, although the improvement provided for under the new ordinance is identical with that provided for by the old ordinance..
The judgment of the superior court will be reversed , and the cause will be remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
Mr. Justice Scott, dissenting.