104 F.2d 549 | 7th Cir. | 1939
Defendant brings this appeal from a judgment of the District Court in an emi‘nent domain proceeding. On October 25, 1934, the United States filed eight petitions, including the one in the instant proceeding, for the condemnation of certain lands situated in the City of Chicago, such lands to be used for the construction of a low-cost housing and slum-clearance project.
The defendant-appellant did not enter an appearance or file any motion to dismiss within the time prescribed by the order. No further steps were taken in this proceeding- in respect to parcels S-153 and S-185 until March 11, 1938, when upon motion of the United States the case was set for hearing before a jury on April 26, 1938, for the purpose of determining and assessing compensation. The case was then continued without objection to June 8, 1938, and on June 9, 1938, defendant-appellant filed a petition for leave of court to file a demurrer and motion to dismiss. The proposed demurrer and motion attacked the sufficiency of the petition for condemnation on the ground that the United States had no power to condemn property for the purposes designated in the petition, that it did not appear from the petition that the use was a public use, and that the provisions of the Act purporting to authorize condemnation for the purposes stated in the petition were unconstitutional and void. After hearing argument on the petition for leave to file the demurrer and motion the District Court denied the petition. Thereafter the case was tried and final judgment awarding compensation was entered on June 24, 1938. Defendant has taken this appeal from the final judgment.
In the statement of points relied upon for reversal it is asserted that the congressional act was unconstitutional and void “as suggested in the demurrer and motion filed herein, which demurrer was overruled by the trial court * * * ”; and that “the District Court erred in overruling the demurrer and motion to dismiss, filed by appellant * •* *.”
It is clear from the record that the action of the District Court which is alleged to be erroneous was the denial of defendant’s petition for leave to file a demurrer and motion to dismiss and not an overruling of the demurrer and motion. Consequently, the question which is presented for our consideration may be stated as follows: Did the District Court properly deny leave to defendant to file her demurrer and motion to dismiss when such leave was first asked on the day of trial which was three years after the filing of the petition and approximately three years after the expiration of the order of the District Court requiring such pleadings to be filed within ten days?
By express authorization of Congress suits in federal courts for condemnation are required to conform as nearly as possible to the “practice, pleadings, forms and modes of proceedings” in the courts of the state in which the federal court is held.
The Illinois cases relied upon by appellee clearly establish the rule that in a condemnation suit no answer need be filed and if one is filed it may be stricken ;
It was within the power of the District Court to provide by its order of July 2, 1935, for the disposition of preliminary questions and to fix a reasonable time within which pleadings relating thereto should be filed. Such order was not inconsistent with any law of the United States or rule of the Supreme Court.
In view of the record defendant’s petition of June 9, 1938, asking leave of court to file a demurrer and motion to dismiss, was addressed to the court’s sound discretion, and in the absence of a showing by the defendant of some adequate excuse for the delay it would not be error for the District Court to deny the petition. But appellant contends that because of the alleged unconstitutionality of the statute under which the United States was acquiring-parcels of land the District Court was without jurisdiction of the subject-matter and that defendant, as a matter of right, could
Defendant confuses jurisdiction of the court with authority of the' United States to acquire thp land in question for the declared purpose. By act of Congress
It has. been held consistently by the Supreme Court of Illinois that “The right to question the validity of a statute may be waived either by act or omission”; and that such waiver “may be by participating in litigation which by fair inference acknowledges the validity of the statute, or by any course of conduct which shows an intention to waive any question as to the validity of the statute, or where it would be unjust to others to permit objection to afterward be made.”
The foregoing rule was recognized by this Court in American Bond & Mortgage Co. v. United States.
Whether the conduct which is relied upon constitutes a waiver or an estoppel depends upon the facts of each case. When the court denied defendant’s petition to be permitted to file a demurrer and motion to dismiss, the following facts appeared of record either in the instant proceeding or in the records of contemporaneous proceedings in the District Court: The contemporaneous proceedings of which the District Court could take judicial notice
As pointed out above, the Illinois practice in condemnation proceedings requires that all questions respecting the authority of the condemner be disposed of prior to the jury trial. Defendant’s execution of the option stipulation in June, 1935, taken with the fact that she failed or refused to file any pleadings to question the authority of the condemner during the time fixed by the order of the District Court and for approximately three years thereafter, clearly indicated an absence of any intention to question the authority of the condemner and constituted a waiver. And in any event defendant’s conduct in consenting to entry of judgment in respect to the taking of five other parcels of her land for the same housing project in contemporaneous proceedings and the acceptance of payment therefor, all of which were done upon the assumption of the validity of the statute in question, effectively estop defendant from attacking the validity of the statute.
Since defendant, by reason of her own conduct, was not in a position to take advantage of the alleged invalidity of the statute, the District Court did not err in overruling her petition for leave to file the demurrer and motion, since the granting of such leave would have availed the defendant nothing.
Judgment of the District Court is affirmed.
Pursuant to Title II of the National Recovery Act, 48 Stat. 200-210, 40 U.S.C.A. §§ 401-411.
25 Stat. 357, 40 U.S.C.A. § 258.
7 Cir., 101 F.2d 421.
Chicago, T. H. & S. E. R. Co. v. Greenfield, 208 Ill. 94. 95, 108 N.E. 750.
O'Hare v. Chicago, M. & N. R. Co., 139 Ill. 151, 159, 28 N.E. 923;. Lieberman v. Chicago Rapid Transit R. Co., 141 Ill. 140, 144, 30 N.E. 544; Department of Public Works v. McBride, 338 Ill. 347, 349, 170 N.E. 295; Chicago v. Chicago T. & Tr. Co., 331 Ill. 322, 328, 163 N.E. 17.
Rev.Stat. Sec. 918, 28 U.S.C.A. § 731.
233 Ill. 508, 511, 84 N.E. 683.
40 U.S.C.A. § 257.
40 U.S.C.A. § 258a.
Chicago-Sandoval Coal Co. v. Industrial Commission, 301 Ill. 389, 392, 134 N.E. 158, 159.
Pierce v. Somerset Railway, 171 U. S. 641, 648, 19 S.Ct. 64, 43 L.Ed. 316.
Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581, 8 S.Ct. 631, 31 L.Ed. 527; Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 37 S.Ct. 609, 61 L.Ed. 1229; Hurley v. Commission of Fisheries, 257 U.S. 223, 42 S.Ct. 83, 66 L.Ed. 206; Shepard v. Barron, 194 U.S. 553, 24 S.Ct. 737, 48 L.Ed. 1115.
7 Cir., 52 F.2d 318, 321.
47 U.S.C.A. § 81 et seq., 44 Stat. 1162.
In re Ferribee, 7 Cir., 93 F.2d 262, 263.
Daniels v. Tearney, 102 U.S. 415, 26 L.Ed. 187; Great Falls Mfg. Co. v. Attorney General, supra.