dissenting:
I cannot agree with the view of this case taken by the majority of the court for the following reasons:
The commissioners appointed to estimate the cost of the improvement reported $4200.00 as the estimated cost thereof. Commissioners were appointed by the county court to assess the amount of the estimated .cost, as so reported, upon the property subject to assessment. The court overruled all objections, except those triable by jury, and, as to the questions proper to be submitted to the jury, a jury was waived, and the cause was submitted to the court for trial without a jury. Upon the hearing of the cause on October 18, 1897, the objectors below, the present appellants, offered in evidence a contract, dated August 3, 1897, entered into between the village of Plinsdale and one Olaf Vider, a solvent and responsible person, for making the improvements, provided for in the ordinance set out in the petition to the county court, at an actual cost of $2698.20, as is easily seen by calculation, the contract giving the number of feet and yards to be improved and the prices per foot and yard. By the terms of this contract the improvement was to be made at an actual cost of from twenty-five to thirty per cent less than the estimated cost, as fixed by the commissioners appointed by the village board: The court refused to admit the contract in evidence. The main question presented for consideration is, whether or not the court erred in thus excluding the contract.
The petitioner below, appellee here, the village of Hinsdale, objected to the introduction of the contract, upon the ground that there was no objection pending before the court under which the evidence was admissible. This was the only ground upon which the contract was excluded; and, in order to understand it, it is necessary to refer to some of the proceedings, which took place prior to the hearing before the court on October 18, 1897.
' A rule was theretofore made by the court, that all objections to the assessment roll should be filed by July 8, 1897. On July 3, 1897, the present appellants filed their objections to the confirmation of the assessment. On July 12, 1897, the appellee, by its attorney, moved that all of the objections so filed, except those triable by a jury, should be overruled; and such objections were thereupon overruled. Afterwards, on October 4,1897, the appellants moved for leave to amend their objections, and for leave to file additional objections; but this motion was denied, and leave to file such additional objections was refused. All, except the last of said additional objections, were merely a more explicit and detailed presentation of the questions involved in the objections as originally filed. But the last of the additional objections, which was not embraced in the objections originally filed, was that the assessment was for a greater amount than the cost of the improvement provided for, and all items that might lawfully be included in said assessment.
The court erred iu refusing to allow the last of the additional objections, as above stated, to be filed, and ■also in refusing to admit the contract offered in evidence. Section 23 of the Practice act provides that “at any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, * * * in any matter, either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense.” In Misch v. McAlpine, 78 Ill. 507, where leave was asked by a defendant, who had filed the general issue, to file an additional plea, which was indispensable to enable him to make a legal defense; and where it appeared that the defendant had been guilty of no culpable negligence in asking for such leave, it was held that the trial court erred in refusing to grant the leave, such refusal having been based upon terms that were not just and reasonable. (Drake v. Drake, 83 Ill. 526; Chandler v. Frost, 88 id. 559). Piling additional pleas comes within the meaning of amendments as specified in the statute. It is the right of a party, at any time before judgment, to make any amendment which is necessary to present a defense, subject to the imposition by the court of reasonable terms.
It is manifest that, in the present case, the additional objection here under consideration could not have been filed on July 3, 1897, when the original objections were filed. The contract with Vider was not let until August 3,1897. It was this contract, which showed that the levy of the assessment was excessive. Application to file an objection, under which it was proper to introduce the contract in evidence, was made before the hearing, to-wit: on October 4, 1897, and at as early a date as it was possible to make it.
The defense, sought to be made by the introduction of the contract of August 3, 1897, was a good one. The property owners should not have been assessed $4200.00 to pay for the improvement when the contract let by the board of trustees for the. making of the improvement involved an exjDenditure of only $2698.20. It is true, that, under the statute, it would have become the duty of the village to return the surplus over and above the actual cost of the improvement to those who paid it, as soon as such surplus should be received. But it is difficult to see why it was necessary to collect such surplus, when a contract was already made for the making of the improvement at a figure, which would leave no surplus on hand. The county court had the power, under section 33, article 9, of the City and Village act, at any time before final judgment, to modify, alter, change or annul the assessment which had been returned, or to cause the same to be re-cast by the commissioners. This could have been done in the present case, if the contract had been admitted, and it had thereby become apparent to the court, that justice required the reduction of the amount of the assessment. In City of Bloomington v. Blodgett, 24 Ill. App. 650, the facts showed, that the commissioners in the proceeding there made a report, estimating the cost of the improvement at $3900.00, and that afterwards a contract was let for the construction of the improvement for the sum of $2900.00, or $1000.00 less than the estimated cost of the assessment. In that case, the court say: “If the excessive and unnecessary levy was known to appellee at the time, or before the judgment of the county court confirming the assessment of the commissioners, as provided in sections 30 and 31 of article 9, chapter 24, R. S., he should then and there have made his defense. * * * The city may undoubtedly proceed to assess and collect special assessments, based upon the estimate made in conformity with sections 20 and 21, article 9, chapter 24, although such estimate may exceed the actual cost of the proposed improvement; hence, so long as it is not known that such assessment is too large no one would be permitted by the county court, either when confirming the assessment or in rendering the judgment upon which the lands are to be sold, to interpose, as a defense, the mere possibility that the assessment may ultimately prove larger than is needed. But, from the moment that it clearly appears there is an excessive levy, either from letting the contract for the proposed work, or otherwise, we think such excess should not be collected, and becomes a legal defense, pro tanto, which the county court should recognize, as, arising at the time, it can be shown in the manner above stated that the levy is excessive and unnecessary.” In Boynton v. People, 159 Ill. 553, we referred to the foregoing case of City of Bloomington v. Blodgett, and approved of it, and endorsed it as announcing “sound doctrine.” The same case was also referred, to with approval in People v. McWethy, 165 Ill. 222.