| Ill. | Mar 28, 1896
delivered the opinion of the court:
We think that the motion to dismiss made by the-appellants should have been granted. The former judgment, confirming an assessment for the same improvement involved in this proceeding, which was rendered on January 7, 1893, and affirmed by this court in an opinion filed on October 29, 1894, and reported in McChesney v. City of Chicago, 152 Ill. 543" date_filed="1894-10-29" court="Ill." case_name="McChesney v. City of Chicago">152 Ill. 543, is res judicata.
It is true, that the ordinance of July 11, 1892, upon which the former assessment was based, was repealed by the common council on November 20, 1893, while an appeal from the judgment of January 7, 1893, confirming the said assessment, was pending in this court. It is also true-that, on December 7, 1893, the county court entered an order vacating the judgment of January 7, 1893, and dismissed the former petition filed August 25, 1892. But the county court had no power so to vacate the former judgment of confirmation, as several terms had passed since its rendition, and it was pending upon appeal in the-Supreme Court. After the lapse of the term at which a judgment is rendered, the court has no authority to set the same aside or change the record, except in obedience-to the mandate of the Appellate Court, on a reversal. It is well settled that after the close of the term, the-court has no jurisdiction to vacate its judgments. (Kelly v. City of Chicago, 148 Ill. 90" date_filed="1893-11-29" court="Ill." case_name="Kelly v. City of Chicago">148 Ill. 90).
By the affirmance of the judgment of confirmation rendered on January 7, 1893, the former assessment was held to be valid. The same subject matter was involved in the former proceeding as in the present proceeding, and the same parties who were before the court there are before the court here. It follows, that the city is bound by the former judgment, and the same can be set up-here as a former adjudication in bar of the present suit. (Greeley v. Town of Cicero, 148 Ill. 632" date_filed="1893-10-26" court="Ill." case_name="Greeley v. Town of Cicero">148 Ill. 632; Leopold v. City of Chicago, 150 id. 568; Chicago, Rock Island and Pacific Railway Co. v. City of Chicago, 143 id. 641; Forsythe v. City of Chicago, 62 id. 304).
Section 46 of article 9, part 1, of the City and Village act, which provides, that “if any assessment shall be annulled by the city council, or board of trustees, or set aside by any court, a new assessment may be made and returned,” etc., has no application to a case where judgment has been rendered confirming the assessment, and several terms of court have passed, and such judgment has been affirmed upon appeal. That section contemplates cases where the proceedings are still in fieri. As was said by this court in Union Building Ass. v. City of Chicago, 61 Ill. 439" date_filed="1871-09-15" court="Ill." case_name="Union Building Ass'n v. City of Chicago">61 Ill. 439, (on p. 444): “We will not impute to the legislature the intention of nullifying the judgments and decrees of courts of general jurisdiction in advance, when it would be beyond the constitutional power of that body to do so after they were made, and especially in relation to statutory proceedings to divest the citizen of his property without his consent.”
This is not an abandonment of the improvement, but an attempt to abandon a valid assessment after judgment and after the term, and to substitute another assessment for the same or substantially the same improvement. To allow this to be done would be to “give undue advantage to one of the parties to the controversy and work a rank injustice to the citizen and property owners.” (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). It would be “unjust and oppressive to the tax-payer and contrary to the principles of the common law, that he should be subjected to the annoyance and expense of defending ag-ainst a multiplicity of proceedings of the same kind for the collection of a single tax.” (Andrews v. People, 75 Ill. 605" date_filed="1874-09-15" court="Ill." case_name="Andrews v. People">75 Ill. 605).
For the reason here stated the judgment of the county court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.