that the existence of a datum was necessary to the legal sufficiency of the ordinance. We are not advised whether the appellants interposed such defense to the application for judgments of confirmation, and the judgment upon the issue was adverse to them, or whether they failed to present such defense, and judgment was rendered against them by default. Nor is it important we should be so advised, for the reason the judgments of confirmation, whether render

ments of confirmation did not recite an ordinance fixing a datum of the village, and the ordinances providing for the improvements do not profess to fix a datum, or to specifically refer to any ordinance establishing the same. The appellants insisted at the hearing of the application for judgment in the county court that no village datum had ever been established, and offered testimony for the purpose of showing that the village had not legally adopted an ordinance establishing a datum. The court heard this evidence under objection, and rendered judgment as asked in the application of the appellee treasurer. We are asked to review the evidence thus produced, and to hold it was sufficient to establish the contention of the appellants, and that the county court for that reason should have denied the prayer of the application of the treasurer. We think the evidence was not competent, but that the appellants were concluded upon the point by the judgments of confirmation. If a datum for a city or village has been established by an ordinance, it is sufficient, in subsequent ordinances providing for public improvements, to adopt and refer to such datum as a standard of measurements, without setting forth or reciting the ordinance by which the datum was established. Parker v. Village of Lagrange, 171 Ill. 344, 49 N. E. 550, and cases there cited. Each ordinance here involved was therefore good and sufficient upon its face. The petitions for confirmation, and the ordinances which we must presume were recited in such petitions, stood in the county court as pleadings in the nature of declarations. They contained all that was necessary to invest the court with jurisdiction to require the appellants, as owners of the property here involved, to appear and present such defenses as they might have to the application. The appellants might have interposed as a defense to the petitions for confirmation that no datum for the village had been established, and might have produced any competent evidence tending to support such contention. Fishburn v. City of Chicago, 171 Ill. 338, 49 N. E. 532. Had they done so, it would have been the duty of the court to properly consider and weigh such testimony, and, if it appeared no datum had been established, to determine whether or not the description of the improvement in the ordinance was such

of appearance to a good and sufficient petition, are conclusive as against collateral attack. Section 39 of article 9 of the city and village act (Rev. St. p. 273) provides that "upon the application for judgment upon such assessment [special assessment] no defense shall be made or heard which might have been interposed in the proceeding for the making of such assessment or the application for the confirmation thereof." It is true that we held in People v. Hurford, 167 Ill. 226, 47 N. E. 368, Cass v. People, 166 Ill. 126, 46 N. E. 729, Otis v. City of Chicago, 161 Ill. 199, 43 N. E. 715, and a number of other cases cited by counsel for appellants, that it might be urged as a defense to the application in those cases for a judgment and order of sale of lands and lots for delinquent special assessments that the ordinance providing for the improvement was void. But in each of such cases the insufficiency of the ordinance was apparent upon a bare inspection thereof.

A valid ordinance is the basis of a proceeding to construct a public improvement by special assessment, and is essential to the ¦ jurisdiction of the court over the subjectmatter of an application for the confirmation of an assessment roll. If, therefore, it should appear in the record of the proceedings for the confirmation of the special assessment that the ordinance was defective and void, that of itself would demonstrate by the record that the court was lacking in jurisdiction to render the judgment. But in the case at bar the record does not disclose that the ordinance was void, and the proposition is that its alleged invalidity may be shown by parol proof. But, as we have seen, the appellants might have presented such proof in defense of the application for confirmation, and, having failed to do so, they are precluded, by the express words of the statute, from the privilege of interposing the same against an application for judgment and order of sale.

It having been stipulated between the parties that the assessment roll in each of said assessment proceedings shows a proper division of the assessment into installments, we must decline to consider the discussion of the question whether the village had authority to so divide the assessment into installments. The judgment must be, and is, affirmed. Judgment aflirmed.

RHODES et al. v. RHODES et al. (Supreme Court of Illinois. April 21, 1898.)

APPEAL-WAIVER-JURISDICTION.

1. An alleged error not contained in the brief in chief, as required by Sup. Ct. Rule 15, adopted November 4, 1897, is waived.

2. Though a freehold is involved, if no objection is made to the decree settling the freehold, an appeal from another part of the decree not involving the question of freehold must be taken to the appellate court.

Appeal from circuit court, Carroll county; John C. Garver, Judge.

Bill by John B. Rhodes, Jr., and others, against William P. Rhodes and others. Judgment for plaintiffs. Defendants appealed. Appeal dismissed.

A. F. Wingert and Henry Mackay, for appellants. Berry & Lichtenberger and Renner & Smith, for appellees.

BOGGS, J. This was a bill in chancery for partition of certain real estate, and for an accounting of rents and profits, filed by the appellees, in the circuit court of Carroll county, to the November term, 1896. The ap

pellant Harriet is the wife of the appellant William P. Rhodes, and was made party to the bill solely because her husband held an undivided interest in the fee of the land. At the April term, 1897, of the said court, a decree was entered declaring the rights, titles, and interests of the respective parties in the land, and finding that the contention as to rents and profits had been by the parties submitted to and determined by arbitrators pending the proceeding, and confirming the award rendered by the arbitrators, and entering a decree thereon against the appellant William P. Rhodes in the sum of $3,003.93, and appointing commissioners to make partition of the premises. At a later day of the same term, an order was entered approving the report of the commissioners that the premises were not susceptible of partition, and decreeing that the premises should be sold by the master. The master's report of the sale of the premises was filed to the November term, 1897, of the said court, at which term a decree was entered approving the said report, and directing that conveyance be made pursuant to the sale, and that the proceeds be distributed to the parties entitled to same. The appellants excepted to this decree, and prayed and perfected this appeal.

Appellees interposed in this court a motion to dismiss the appeal, upon the ground this court had no jurisdiction to entertain it. Appellants resisted the motion on the theory that a freehold is involved, and decision on the motion was reserved to the hearing. The decree rendered at the April term, 1897, involved a freehold, but no appeal was prayed or perfected from it. Appellants insist the decree rendered at that term was not final, but merely interlocutory, and that the

appeal perfected from the decree rendered at the November term operates to bring into review in this court the proceedings in the cause from its inception. The decree rendered at the April term finally adjudicated the rights and interests of the parties in and to the lands, appointed commissioners to allot to each of said parties his share in severalty, and, upon the coming in of the report of the commissioners, determined and declared that partition and allotment could not be made between the owners, but that the premises should be sold, and the proceeds divided. Nothing remained to be done but carry the decree into execution. It was therefore a final, appealable decree.

In Allison v. Drake, 145 Ill. 500, 32 N. E. 537, speaking of a decree of partition of real estate, we said (page 510, 145 Ill., and page 539, 32 N. E.): "We are of the opinion that the decree is final, so as to authorize an appeal to this court, notwithstanding the order for an accounting. A final decree is not necessarily the last order in the case, as orders sometimes follow merely for the purpose of carrying out or executing the matters which the decree has determined; but, when it finally fixes the rights of the parties, it is final, and may be reviewed on appeal or writ of error." In Ames v. Ames, 148 Ill. 321, 36 N. E. 110, it was insisted a writ of error brought to review a decree in partition should be dismissed, for the alleged reason such a decree was not final; but the insistence was overruled, and it was held the decree was a final, appealable decree. In obedience to the same principle, we have held that the decree entered in a foreclosure proceeding finding the debt to be due and unpaid, and that the lien of the mortgage attached to the land, directing the debt to be paid within a designated period, and decreeing that in default of payment the land should be sold by the master, and report of such sale made to the next term of the court, was a final, appealable decree. Myers v. Manny, 63 Ill. 211. In Chicago & N. W. R. Co. v. City of Chicago, 148 Ill. 140, 35 N. E. 881, we said (page 153, 148 Ill., and page 883, 35 N. E.): "A judgment or decree is said to be final when it terminates the litigation between the parties on the merits of the case, so that, when affirmed by the reviewing court, the court below has nothing to do but to execute the judgment or decree it had already entered."

Counsel for appellants, in their reply brief, admit that an appeal may be taken from a decree in partition establishing and declaring the title, right, and interest of the respective parties, but insist a party dissatisfied with the decree need not appeal from it, but may wait until the last order having reference to any of the proceedings in the case is entered, and by an appeal therefrom bring the whole case into review. We think this insistence not at all tenable. If such a party, being the owner of an undivided interest

in real property, is dissatisfied with the decree of the court as to the extent of his interest or as to any other matter affecting the title to the land, and has a right to appeal, it is manifest he ought to be required to exercise the right, in order the costs of a sale may be avoided, and other persons may not be induced to become purchasers at the sale, and thereby possibly involved in litigation, trouble, and costs, under the belief that the parties to the decree are satisfied with the adjudication of their rights by the court, and bound thereby.

It was decreed by the court at said November term that the master should convey the premises sold, to the purchaser at the sale, and counsel for appellants insist in their reply brief that a freehold is for that reason involved in this appeal. One of the assignments of error is general in character, and, it is urged, includes an objection to the ruling of the court that such conveyance should be made. We do not assent the alleged error is so assigned, but, had it been formally assigned, it must be deemed waived, for the reason that it is referred to only in the reply brief, the brief filed in chief being devoted entirely to other questions. Rule 15 of the rules of this court (47 N. E. v.), adopted November 4, 1897, and in force when the briefs herein were filed, provides that an alleged error or point not contained in the brief in chief shall not be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing. We find nothing even in the reply brief having reference to such alleged assigned error, beyond the bare assertion that the order directing the conveyance to be made involves a freehold. It is apparent from the brief in chief that the appeal in this case was taken for the purpose of bringing into review that branch of the case which resulted in the rendition of a money decree against the appellant William P. for a sum adjudged by the court to be due from him to his co-tenants for the rent of property which they owned as tenants in common. That this is true is put beyond cavil by the conditions of the appeal bond given by the appellants. The recitals of the bond. in substance, are that whereas a decree has been rendered against the appellant William P. Rhodes, in favor of the appellees, for the sum of $3,003.96 and costs of suit, from which decree an appeal is prayed, therefore the bond should be null and void if the appeal was duly prosecuted, and the amount of the said decree paid by the said William P. Rhodes in case the decree should be affirmed; otherwise, to be in full force and virtue. Though a freehold is involved in a litigation, yet, if no objection is made to the decree so far as it settles the freehold, an appeal from another part of the same decree, not involving the question of a freehold, must be taken to the appellate court. Cheney v. Teese, 113 Ill. 444; Malaer v. Hudgens, 130 Ill. 225, 22 N. E. 855; Fread v. Fread,

165 Ill. 228, 46 N. E. 268. The motion to dismiss the appeal is sustained. Appeal dismissed.

HEINROTH et al. v. KOCHERSPERGER, County Treasurer.

(Supreme Court of Illinois. April 21, 1898.) SEWER ASSESSMENTS-VALIDITY-FRAUD-INJUNCTION-PARTIES-MOTION To Dissolve.

1. A bill alleged that a city did not construct certain catch-basins and covers to manholes as required by an ordinance providing for the construction of sewers for which complainants' lands were assessed; that, by reason of the improper construction of the sewers, water flooded complainants' lands; that the city was about to pay certain contractors who had failed to comply with their contract; that the city officials had made a fraudulent contract with a certain corporation, and had agreed to relieve certain property owners from paying assessments. Held insufficient to show that the complainants were entitled to an injunction relieving them from paying their assessments.

2. The fact that other sewers were connected with those for which complainants' lands were assessed does not relieve them from their assessments, in the absence of a showing that such connection rendered the sewers less beneficial to them.

3. A city is a necessary party to a bill for an injunction relieving lot owners from paying special assessments for sewers.

4. On a motion to dissolve an injunction, the court may dismiss the bill for want of equity. Appeal from Cook county court; Farlin Q. Ball, Judge.

Bill by William C. Heinroth and others against Daniel H. Kochersperger, as treasurer and ex officio collector of Cook county, to enjoin the sale of land for nonpayment of special assessments. Decree for defendant, and complainants appeal. Affirmed.

Samuel J. Howe and N. H. Hanchette, for appellants. Charles S. Thornton, Corp. Counsel, and John A. May, for appellee.

PER CURIAM. The appellants are owners, respectively, of a number of lots and parcels of land situated in the city of Chicago. The city, on October 19, 1891, adopted an ordinance providing for the construction of a system of sewers in Wentworth avenue, Ninety-Ninth, Halsted, St. Charles, and other streets, and for the creation of a drainage district in connection therewith. The lots and parcels of land owned by appellants were adjudged to be benefited by the improvement contemplated by the ordinance, and such benefits were duly estimated, and the estimate regularly confirmed, at the May term, 1892, of the county court of Cook county. The improvement provided by the ordinance was extensive and expensive. The assessment as confirmed reached, in the aggregate, the sum of $799,679.16. It was divided into five equal installments, four of which the appellants have fully paid. In default of payment of the fifth installment, judgment therefor was rendered against their respective premises by the county

court of Cook county at its July term, 1897.

The appellee is county treasurer and ex officio collector of taxes in and for the said Cook county. On the 24th day of December, 1897, the appellants (29 in number) filed in the circuit court of Cook county their bill in chancery against the appellee, as treasurer and ex officio collector, representing that said treasurer was about to engage in selling the lands and lots against which said judgment had been rendered for nonpayment of said fifth installment of said assessment, and praying that because of the matters and things alleged in the bill the said treasurer and ex officio collector should be restrained from selling said lands and lots belonging to the complainants in the bill (the appellants). A preliminary injunction was issued without notice and served on the appellee. Appellee, by his counsel, entered his motion to dissolve the injunction, and on this motion a decree was entered dissolving the injunction and dismissing the bill for want of equity. The motion seems to have been made orally, but it is apparent from the decree of the court the ground thereof was that the allegations of the bill were not sufficient to warrant the issuance of the writ.

The bill is too lengthy to be here set out in extenso, and, in the view we take of the case, the questions arising may be as well considered by reference to the allegations of the bill as by a full recital thereof.

It is conceded the judgment for the sale of the lands and lots is regular and valid, and it is not complained that anything has been done or omitted to be done by the appellee which would affect his legal power and authority as treasurer and ex officio collector to sell the premises in question. Nor is any

act of the appellee, either as an official or as an individual, or any failure upon his part to act in either capacity, alleged in the bill or in any wise relied upon as ground for the exercise of the restraining power of the court. The prayer for an injunction rests solely upon alleged fraudulent practices, delinquencies, trespasses, wrongs, laches, acts of favoritism, and oppression upon the part of officials of the city of Chicago. Neither the city nor any of such officials were made defendants to the bill, and nothing to be found in the bill indicates it was within the contemplation, or even the desire, of the complainants that the matters and things alleged against the city, and which constituted the grounds for the interference of a court of equity, should be adjudicated between themselves and the city by the court. The sole relief asked was that the county treasurer and ex officio collector should be restrained from performing the duty devolving upon him by law of selling the lands and lots in pursuance of a confessedly lawful and binding judgment of the county court. We have carefully consulted the allegations of the bill, and think them insufficient to authorize the exercise of the extraordinary re

straining power of a court of equity. It is fundamental that the aid of equity can only be invoked in the absence of an adequate legal remedy.

The general allegation that the improvement was not made in compliance with the provisions of the ordinance was but the statement of the conclusion of the pleader, upon which no issue of fact could be framed. Certain alleged delinquencies in this respect were specified, viz.: That certain catchbasins provided by ordinance to be built at different points along the line of the sewer were wholly omitted; that the manholes along the sewers were not furnished with iron covers, as required by the ordinance; and other similar instances of noncompliance with the terms and conditions of the ordinance. We held in Callister v. Kochersperger, 168 Ill. 334, 48 N. E. 156, that the aid of a writ of injunction might be invoked, while the work was in progress, to restrain the city from performing the work in a mode or manner not consistent with the terms of the ordinance; and that if the city accepted the work as performed by the contractor, and the requirements of the ordinance had not been complied with, resort might be had to the writ of mandamus to compel the city to construct and complete the work in accordance with the specifications and conditions of the ordinance. Thus, it would seem, complete and adequate remedies are provided to enable the property owners to secure the improvement which the city undertook, by the ordinance, to supply and construct. That being true, no reason is perceived why the court, in the case at bar, should restrain the collection of the assessment upon the ground the city had omitted to build the catch-basins or to supply proper covers for the manholes, or had otherwise failed to complete the work in the mode and manner pointed out by the ordinance. The rights and interests of all the property owners whose property has been specially assessed, and of the taxpayers generally in the city, are best conserved by requiring all assessments to be paid and enforcing completion of the improvement according to the terms of the ordinance, and no injustice would be suffered by the complainants herein by the adoption of such a course.

The bill alleged that by reason of the failure to provide the said catch-basins, and because of the improper construction of the sewers, the natural flow of the water had been obstructed, and the water caused to flow back upon and flood and damage the lands and lots of the complainants, and the argument of counsel seems to be that the sale of lands under the judgment should be enjoined until the damages thus inflicted were adjudicated or in some way adjusted, and the amount thereof applied in reduction of the assessments. No reason is suggested why the general rule that unliquidated damages arising out of a tort cannot be made

the subject-matter of set-off should not have full operation, and, indeed, so many other reasons why such damages cannot and should not be considered in the equitable proceeding at once suggest themselves that serious discussion of the point is not at all necessary.

If it is true, as alleged, that the city is about to pay the contractors for work not performed according to the contract, or for work in which common brick were used instead of sewer brick, as it is alleged the ordinance and the contracts with such contractors required, the remedy is not to enjoin the collector from selling land to collect the assessment, but to ask that the city be restrained from thus improperly paying out the fund.

The allegations that the complainants, and other owners of property specially assessed for the purpose of raising the funds necessary to make the improvement, have been or will be damaged by reason of certain alleged fraudulent contracts and stipulations entered into between the officials of the city and the West Pullman Land Association may furnish grounds for the institution of suit or suits for the purpose of vacating or annulling such contracts and stipulations, or enjoining the fulfillment of such contracts or stipulations, but do not constitute reasons for relieving the complainants from the payment of their special assessments. Nothing developed in such allegations operates to take the case out of the general rule, well established by repeated decisions of this court, that equity will only restrain the collection of a tax in case the tax is void or levied without authority of law, or the property taxed is exempt from taxation.

The same rule applies to the alleged wrongful acts and agreements averred to have been entered into by the city officials, whereby, as it is alleged, certain property owners were relieved from paying assessments upon their property. If it be true, as alleged, the officials of the city purposely omitted from the rolls and records assessments which had been confirmed against the property of other designated persons, and that such officials have neglected to have dismissed an appeal which it is alleged a certain other property owner prayed from the judgment of confirmation, but which appeal was not perfected, the writ of mandamus may be invoked to compel the city to restore the omitted property to the rolls and collect the assessments thereon, and to take the necessary steps to have the appeal in question dismissed. And the coercive power of the same writ of mandamus may be invoked to compel the city authorities to permit complainants to inspect the books and records in the offices of the commissioner of public works and the superintendent of sewers, if they are found entitled to so inspect and examine such books and records.

If the city, as alleged, fraudulently and un

lawfully relieved certain contractors from the performance of designated conditions of their contract, and are about to pay other contractors large sums to perform the work from which said first contractors were relieved from performing, the remedy for such wrongs, if wrongs they prove to be, is not refusal to pay assessments, but proceedings in the courts, to which all parties interested are made parties, and wherein the rights and interests of all concerned can be developed and properly adjusted. The power to institute such actions does not rest in the city alone, but the complainants may, in proper cases, invoke the aid of the law. As the result of a full review of the authorities bearing upon this question, Mr. Dillon, in his work on Municipal Corporations (section 921, p. 1117, 2d Ed.), says: "There is no doubt but that the corporation may in its own name bring suits, in proper cases, to be relieved against illegal, unauthorized, or fraudulent acts on the part of its officers. Since, however, experience has shown how liable these corporations are to be betrayed by those who have the temporary management of their concerns, it would never do, we think, for the courts to hold that relief against illegal or wrongful acts can be had only by an authorized suit brought by and in the name of the corporation."

All other allegations of the bill relied upon as a ground for enjoining the collection of the assessments (save one, which will be hereafter referred to) fall within principles hereinbefore announced, and therefore need not be specifically discussed. The excepted allegation is as follows: "Complainants further charge that since the building of said sewer, and without any legal change in the boundary lines of the drainage district, said city has constructed various other sewers which have their beginnings outside of said district, and drain large tracts of land outside of said district, which sewers have their outlet in said Wentworth avenue sewer." It is not averred the opening of other sewers into the Wentworth avenue sewer has in any degree impaired the usefulness of the latter sewer, or rendered it less beneficial to the property of the complainants. We are to construe the averment most strongly against the complainants, and, in the absence of any averment to the contrary, it is not inconsistent with the allegation that some reasonable and proper consideration induced the city to connect the different sewers. At all events. the bare allegation that such connection has been made is not sufficient to warrant the award of a writ of injunction relieving the complainants from payment of their assess

ments.

We have alluded to the fact that though the sole grounds relied upon to justify the interposition of a court of chancery to enjoin the collection of the tax consisted of alleged delinquencies, frauds, laches, and unlawful acts of the officials of the city of Chi