firmation by default was entered against the lands of appellee, Murphy, May 18, 1911. On May 5, 1912, appellee gave notice that he would file a motion to set aside the default and vacate the judgment entered against his lands on May 18, 1911, and for leave to file objections to said assessment. After overruling a demurrer of the city and striking certain pleas filed by the city to said motion, the court proceeded to hear the motion to set aside the default against appellee on affidavits and evidence, and made an order setting aside the default and vacating the judgment of confirmation as to appellee's lands and gave leave to file objections instanter, which was done. This appeal is prosecuted by the city from the order setting aside the default and vacating the judgment of confirmation. A bill of exceptions was taken upon the hearing of the motion, from which it appears that the principal reason for setting aside the default and vacating the judgment was a want of proper service of notice upon appellee or his agents, and the making of a false affidavit as to the examination of the records to ascertain the name and residence of the person who paid the taxes upon appellee's property the previous year. Having reached the conclusion that the order setting aside the default and permitting appellee to file objections is not a final and appealable order it will not be necessary to consider any other question. Where a defendant makes a motion to set aside a default and vacate a judgment in order to allow a defense, and such motion is denied, the denial of the motion is a final judgment, which may be reviewed by appeal or writ of error, (Lake v. Cook, 15 Ill. 353; Boyles v. Chytraus, 175 id. 370;) but when the motion is allowed and the judgment is set aside merely for the purpose of allowing the party to interpose a defense the order is interlocutory and an appeal will not lie there from. (Walker v. Oliver, 63 Ill. 199.) In such case the court does not finally determine the rights of the parties. Where a default is set aside and a money judgment is vacated, the usual and proper practice is to allow the judgment recovered to stand as a security for the payment of any amount that may ultimately be recovered upon a re-trial of the case, and any liens that have been acquired under the judgment are retained until the final determination of the merits of the controversy. Upon a re-trial of the case the court may re-enter the same judgment or modify it or render an entirely different judgment, but until such final judgment is rendered there is no final disposition of the case within the meaning of the statute which allows appeals and writs of error to review final judgments. If the opposite party desires to question the action of the court in setting aside the default and vacating the judgment, it is his duty to preserve exceptions thereto and assign error thereon as a part of the record after the controversy has been finally determined. (People v. Wells, 255 Ill. 450.) A final judgment, within the meaning of the statute, is one that finally disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate branch thereof. (Mutual Reserve Cases like Owens Fund Life Ass'n v. Smith, 169 Ill. 264.) v. Ranstead, 22 Ill. 161, Kochman v. O'Neill, 202 id. 110, and Hilt v. Heimberger, 235 id. 235, all of which were original bills in equity for relief against judgments at law, are not controlling under the facts in the case at bar. In those and other like cases this court has regarded a decree either setting aside the judgment complained of or refusing so to do, as a final decree, which might be reviewed by an appeal or writ of error. The motion in the case at bar to set aside the default and vacate the judgment of confirmation was not an independent original action but was simply a step taken in the original proceeding, which is authorized by section 89 of the Practice act of 1907. There being no final judgment here, the appeal will be dismissed. Appeal dismissed. THE CITY OF KANKAKEE, Appellee, vs. THE ILLINOIS CENTRAL RAILROAD COMPANY, Appellant. Opinion filed April 19, 1913. 1. SPECIAL TAXATION-power of the court to amend roll upon the hearing. Under section 52 of the Local Improvement act the court, on the hearing of the application to confirm a special tax for the construction of a local improvement by special taxation upon abutting property in proportion to frontage, may strike from the roll property not abutting upon the proposed improvement. 2. SAME-Court cannot add property to roll without new notice. A proceeding to construct a local improvement by special taxation of abutting property is a proceeding in rem and not in personam, and the court is without jurisdiction to add to the roll property not originally included therein without the giving of a new notice such as is required in the first instance, even though the owner is in court objecting as to other property originally included in the roll. 3. SAME when location of land is prima facie evidence that it is not benefited. Where a tract of land comprising the bed of a river is arbitrarily added to a special tax roll on the hearing without any new notice, the roll itself affords no evidence that such tract will be benefited by paving a street forming the bank of the river, and, in the absence of any evidence that it is benefited, the location of the land is itself prima facie evidence that it will not be benefited. 4. SAME-city has power to provide that entire cost of pavement shall be specially taxed against contiguous property. In providing for the construction of a pavement by special taxation it is for the city to determine whether the improvement shall be paid for wholly by special taxation or in part only, and if in part only, what proportion shall be paid for by special taxation and what part shall be paid for by general taxation. 5. SAME-land abutting upon an improvement may be specially taxed for its share of cost of street intersections. Where an improvement is to be constructed by special taxation upon contiguous property all the land contiguous to the improvement may be taxed for its share of the cost of the whole improvement, including street intersections. 6. SAME when it is proper to assess whole of railroad right of way as contiguous to improvement. Where a railroad right of way lies between two parallel streets, which form, respectively, the east and west boundaries of the right of way, such right of way is contiguous to both streets, and when it is sought to pave one street by special taxation upon contiguous property it is proper to tax the entire right of way as being contiguous to such street. 7. SAME when record of special assessment proceeding is admissible in a special tax proceeding. In a proceeding to confirm a special tax for the paving of a street forming the eastern boundary of a railroad right of way, the record of a special assessment proceeding for paving the street forming the western boundary of the right of way is admissible as bearing upon the question of the extent the right of way is benefited by the improvement to be paid for by special taxation; but the record of the assessment proceeding does not, of itself, show a scheme for carrying on two proceedings for the purpose of assessing the right of way twice for a single improvement. 8. SAME-witness should not be asked whether special tax exceeds the benefit. In a proceeding to confirm a special tax it is proper to call upon witnesses to give an opinion as to the amount which the property will be benefited by the proposed improvement, but it is improper to ask them to determine the ultimate fact in the case by asking the direct question whether the amount set down in the special tax roll against certain property exceeds the benefits thereto. APPEAL from the County Court of Kankakee county; the Hon. A. W. DESELM, Judge, presiding. W. R. HUNTER, for appellant. WALTER C. SCHNEIDER, City Attorney, WAYNE H. DYER, and JOHN H. BECKERS, for appellee. Mr. CHIEF JUSTICE DUNN delivered the opinion of the court: The city council of the city of Kankakee passed an ordinance for the paving of a part of East avenue from the north line of Hickory street to the north line of River street and of a part of River street from the east line of East avenue to the west line of Washington avenue, and directed that the whole cost of the improvement should be paid by special taxation to be levied upon the property contiguous to and abutting thereon, in the proportion of the frontage of each lot, block, tract or parcel of land and property. A petition for the levy of the special tax in accordance with the ordinance was filed in the county court, and an assessment roll was returned amounting to $15,000 on the total frontage of 2762 feet, $6799.61 being assessed against the right of way of the Illinois Central Railroad Company on a frontage of 1252 feet. The railroad company objected to the confirmation of the assessment roll but its objections were overruled, and this appeal is from the judgment of confirmation. The right of way of the Illinois Central railroad, 200 feet wide, extends through the city of Kankakee north and south, crossing the Kankakee river, and River street, which runs east and west on the north bank of the river. From River street East avenue runs north, adjoining the railroad on the east, and West avenue runs north, adjoining the railroad on the west. Hickory street is the first east and west street north of River street which crosses the railroad, and the distance from the south side of Hickory street to the north side of River street is 852 feet. This, with 200 feet, (the width of the right of way crossed by River street,) makes 1052 feet frontage on the improvement. River street is 70 feet wide, the south 10 feet of its width being under the water in the river. Court street is three blocks north of Hickory street, and the assessment roll as it was returned described the right of way of the appellant which was assessed, as extending from the south line of Court street to the north line of River street. On the hearing of legal objections the description was amended so as to read from the north line of Hickory street to the north line of River street. After the overruling of all legal objections and the hearing of all the evidence on the question of benefits, the court ordered the commissioner to amend the roll so as to describe the right of way of the appellant which was assessed, as extending from the north line of Hickory street to a point 200 feet south of the north line of River street. |