228 Ill. 208 | Ill. | 1907
delivered the opinion of the court:
Only those errors which appear on the face of the record, or those matters which should, but do not, appear on the face of the record, can be urged in arrest of judgment. (2 Ency. of Pl. & Pr. p. 794.) A motion in arrest of judgment is based on the record proper, and in considering such a motion the court does not look into the evidence. (Danley v. Hibbard, 222 Ill. 88; 23 Cyc. 824.) A judgment is never arrested except for intrinsic cause appearing on the face of the record, and it must be a defect that cannot be waived, and the record must show that there is no substantial cause of action. (2 Ency. of Pl. & Pr. p. 799; Smith v. Curry, 16 Ill. 147.) Such a motion cannot be sustained by facts dehors the record. Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61.
What makes up a judicial record is so largely governed by statutory enactments that no specific definition can be given. “Generally, whatever proceedings, facts or papers the law or the practice of the various courts requires to be enrolled are properly a part of the judicial record.” (24 Am. & Eng. Ency. of Law,—2d ed.—p. 161.) All the pleading's in a case are a part of the record. (Zimmerman v. Cowan, 107 Ill. 631.) In special assessment proceedings for local improvements under the City and Village act the petition and copy of the ordinance attached thereto are a part of the pleadings. Lundberg v. City of Chicago, 183 Ill. 572; Houston v. City of Chicago, 191 id. 559.
The chief insistence of appellees in support of their contention that the motion in arrest of judgment was properly sustained is, that neither the original nor the additional assessment was levied in accordance with the law, in that the additional assessment was levied by commissioners and not by jury, and in that while the original assessment was made by jury it was a justice jury, and not chosen in accordance with the decisions of this court. In this connection they also insist that no damages were allowed the objectors, either in the original assessment or on this hearing. In the original proceedings it appears that both of the objectors were heard before the jury, and they there filed no objections as to the method of choosing the jury or trying the case, neither did they appeal from the confirmation of that assessment, and they afterward paid their assessment. The original assessment roll contained a column headed “Benefits,” one' headed “Damages” and a third headed “Total Benefits.” The column headed “Damages” was blank so far as objectors’ property was concerned, and this court has held that where that column contains no entry of damages it will be presumed that an entry in the column headed “Benefits” shows benefits in excess of damages. (Lovell v. Drainage District, 159 Ill. 188; Huston v. Clark, 112 id. 344.) Moreover, the court found in its order in this proceeding that those questions were settled in the original proceeding and were not subject to consideration in this additional assessment. Where no question of damages is to be determined, or where it has been determined that land not taken is not damaged, the commissioners may proceed to determine whether it is benefited. (Hull v. Sangamon River Drainage District, 219 Ill. 454; Stack v. People, 217 id. 220; City of Joliet v. Drainage District, 222 id. 441.) The question as to whether damages were properly assessed in the original proceeding cannot be raised at this time. In passing on a supplemental or additional assessment levied under the Local Improvement act for cities and villages, this court, in Conway v. City of Chicago, 219 Ill. 295, held that in a proceeding to levy a supplemental assessment the property owners could not attack the sufficiency of the original ordinance. In Juvinall v. Jamesburg Drainage District, 204 Ill. 106, this court held that unless the property owner in a drainage proceeding specifically objected to the denial of a trial by jury upon the question of damages and benefits the objection was waived and the judgment of confirmation would be conclusive. The record before us discloses that this additional assessment is being levied for the purpose of completing the original work and not for any additional work, so that it is evident the property of the objectors is not taken or damaged thereby.
The objection that plats and profiles were not filed in this additional proceeding is without force. Such plats and profiles were filed in the original proceedings. Said section 37 of the act requires that if additional work is to be done, plats and profiles must be filed for such additional work with the petition for the additional assessment. If the additional assessment is not for the purpose of extending the work but merely to complete the work as originally laid out, and the original plans and profiles show all of the work, we can see no good reason why plans and profiles should be filed with the petition for the additional assessment, so as to set out clearly what work is required. In this case it is plain from the petition for the additional assessment that no such additional work is proposed,—that the petition is filed only for the purpose of completing the work as shown and set out on the plans and profiles in the original assessment. The objection that the additional levy was made without lawful authority by the commissioners, or was illegal and void and contrary to the constitution, finds no support, therefore, in the record.
Appellees further insist that the report of the commissioners as to receipts and disbursements was not originally sufficiently itemized, and that the fact that it was further itemized by the commissioners on the order of court, at the request of other objectors than appellees, cannot make it good as to appellees. There is no force in this objection. The proceedings before the county court plainly show for what purpose the money to be derived from the assessment was to be used, and we do not consider the commissioners’ petition indefinite, uncertain or insufficient on- this point.
It is further insisted by appellees that this assessment was levied to pay an indebtedness already incurred, and that under the decisions of this court in Winkelmann v. Drainage District, 170 Ill. 37, and Ahrens v. Drainage District, id. 262, an assessment for this purpose cannot be sustained. None of the objections filed by appellees in support of their motion in arrest of judgment would lead one to think, even from a careful study, that these objections were intended to raise this question. The motion in arrest of judgment should state concisely the defects complained of as being patent on the face of the record and the specific causes for which judgment should be arrested, otherwise the rulings of the lower court upon this motion can not be reviewed on appeal. (2 Ency. of Pl. & Pr. p. 816.) It is insisted by counsel for the appellants, and practically by counsel for the appellees in their briefs, and also manifest from the entire record, that the court did not sustain the motion in arrest of judgment on this ground. The wording of the order of court in sustaining the motion in arrest of judgment tends strongly to show this. The court sustained the motion and refused to approve the assessment only as to the property of appellees herein, but distinctly stated in the order that the assessment was approved “as to all other lands and property in said drainage district.” If the court had sustained the objection on the ground that an additional assessment was being levied to pay an indebtedness already created by the drainage commissioners, logically and justly it should, of its own motion, have nullified the entire assessment roll. An appeal is taken for the purpose of reviewing the findings of the lower court, and not something that was not presented in that court. A defense not made will not be considered in this court on review. (City of Mattoon v. Noyes, 218 Ill. 594; Close v. City of Chicago, 217 id. 216.) On the face of this record we do not think the court was justified in sustaining the motion in arrest of judgment.
The judgment and order of the county court in this proceeding will therefore be vacated and set aside, and the judgment will be reversed and the cause remanded for further proceedings in accordance with the views herein set forth.
Reversed and remanded.