Village of Baylis v. Orr (291 Ill. 201, 1919)

Mr. Justice Farmer

delivered the opinion of the court:

The village of Baylis, in Pike county, Illinois, filed its petition in the circuit court in vacation in 1917 to condemn one and two-fifths acres of the land of Joseph F. Orr for cemetery purposes. The petition alleged the village owned a cemetery in the corporate limits, of about two acres, which was laid off in lots and used for the burial of the dead; that it was necessary to enlarge the cemetery and acquire additional ground therefor; that an ordinance of the village had been duly passed authorizing it to acquire, by condemnation or purchase, the land described in the petition; that the village was unable to agree with the owner for its purchase, and the petition prayed that the compensation to be paid for the land be determined and fixed by the court according to the statute in such case made and provided'. A hearing was had in April, 1918, and the compensation to be paid for land taken and damaged was fixed at $800 and ordered paid on or before March 1, 1919. On the 21st of March, 1919, and during the November, 1918, term of the Pike county circuit court, Orr, the owner of the land condemned, filed his petition alleging the compensation had not been paid, that the .village had abandoned its petition and the proceedings had thereunder had abated, and prayed to have his attorney’s fees, costs and expenses incurred in the proceeding fixed and ordered paid, and that the court declare the petition for condemnation, and the proceedings had thereunder, had abated. When the hearing came up on the petition, April 21, 1919, the village of Baylis entered a cross-motion for leave to pay the judgment of compensation into the county treasury for the use of Orr eo instmti, -and that upon payment the village be authorized to enter upon and appropriate the property for cemetery purposes. From testimony heard on the petition and motion it appeared that when the condemnation proceeding was heard and compensation fixed, the village had no, funds available out of which it could pay the judgment but would have to raise the money by a tax levy made that year but which could not be collected until the next year, 1919. For that reason March 1, 1919, was fixed as the time for payment of the compensation. Accordingly, appropriation and levy ordinances were passed providing for the levy of a tax to pay said judgment. The tax was levied and collected and was available for payment of the judgment at the time the hearing was had, but it had not been collected March 1 because of the fact that by reason of an amendment to the Revenue law in 1917 the time of settlement with the county treasurer for taxes was changed from March 1 to April 1. When the village authorities learned of Orr’s intended action, and before they had settled with and received the tax money from the county treasurer, they procured on their individual credit the sum of $800 and on April 9 tendered it to Orr in payment of the judgment, but he. refused to accept it. The court entered an order directing that the village pay on the 21st day' of April, 1919, to the county treasurer of Pike county for the use of Orr, $800 and interest thereon from March 1, 1919, and that upon making said payment it enter upon and take possession of the land. From that order Orr has prosecuted this appeal.

Appellant contends that by the failure