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Chicago In Trust For Use of Schools v. Fischer

SEPTEMBER 9, 1964.

CITY OF CHICAGO IN TRUST FOR THE USE OF SCHOOLS, AND NATIONAL BAKING COMPANY, PLAINTIFFS-APPELLEES,

v.

JEROME A. FISCHER, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed. MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 5, 1964.

These are appeals from a judgment ordering the County Treasurer to pay $800 to National Baking Company.

In an eminent domain proceeding filed on February 13, 1963, Vasos was made a defendant.

On June 26, 1963, a judgment in the condemnation proceeding was entered adjudging the compensation due "to the owner or owners of and party or parties interested in said real property"; ordering a payment to the County Treasurer within 180 days and decreeing that upon the payment of the adjudged compensation, the petitioner in the condemnation proceeding would become vested with absolute title. This judgment does not adjudicate which specific person is entitled to the compensation, it merely fixes the amount to be paid generally "to the owner or owners of and party or parties interested in said real property" and orders a deposit with the County Treasurer.

As stated in County of Cook v. Vander Wolf, 394 Ill. 521, 69 N.E.2d 256, the treasurer holds the money in trust for the owners thereof who may compel payment by petition or other legal proceeding.

On July 12, 1963, the compensation was deposited with the County Treasurer.

On October 1, 1963, the court heard the counterpetition of Vasos alleging that he had an interest in the property under a lease with an unexpired term of nine and one-half years.

By stipulation the court ordered the County Treasurer to pay Vasos from the deposited award the sum of $800 for his leasehold interest.

On December 10, 1963, the National Baking Company filed a petition alleging that it was a judgment creditor of Vasos by virtue of a judgment in the amount of $1450.50 entered in the Municipal Court of Chicago on May 31, 1963, in its favor and against Vasos, and requesting the court to direct the County Treasurer to pay it the $800 which was still held by the County Treasurer for Vasos. Jurisdiction of the court which entered the condemnation judgment was invoked under Chapter 47, Section 14, of the Smith-Hurd Annotated Statutes:

Should payment be made to the county treasurer, as is in this section provided, the court in the same eminent domain proceeding in which the award is determined shall have exclusive jurisdiction to hear and determine all conflicting claims to the compensation so paid to the county treasurer except where the parties claimant are engaged in litigation in a court having acquired jurisdiction of said parties with respect to their rights in the property condemned prior to the time of the filing of the petition to condemn, a payment by the county treasurer pursuant to the order of court determining such conflicting claims shall be a full acquittance to him. Appeals may be taken from any order determining such conflicting claims as in other civil cases.

Vasos' appeal is predicated upon what he contends is the inapplicability of Section 14 and the unenforceability of any lien which accrued after the filing of the condemnation proceeding. He relies principally on the following statement from the case of City of Chicago v. McCausland, 379 Ill. 602, 606, 41 N.E.2d 745:

The statute, as well as the decisions of this court, however, require ascertaining value of the property taken as of the date of the commissioners' report, and the net money that one will receive is determined as of the liens existing at that date. (City of Chicago v. Collin, supra; Turk v. City of Chicago, 352 Ill. 171.) However, the municipality has the right, after the final judgment is entered, to abandon the proceeding, so there is no certainty that the land proposed to be taken will become subjected to a public purpose. It is therefore reasonable and necessary for the taxing authorities to continue to assess the property involved, but when the money is actually paid, which is the event that completes the taking, the title acquired relates back to the time when the commissioners made their report, and it is only the liens that existed at that time that are liens against the fund.

It has been held in other eminent domain cases that liens accruing after the date for fixing the value has passed, are subject to being avoided by the completion of title on payment of the award. To permit taxes of subsequent years to be charged as a lien against just compensation for land, title to which relates back to a time before their assessment, would infringe the constitutional provisions that property shall not be taken for public use without just compensation.

It is evident to us that the principle "and it is only the liens that existed at that time that are liens against the fund" refers only to tax liens because, as explained in the first portion of the quotation, the net money to be received by the condemnee is determined as of the time the valuation ...


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