Garrick v. Chamberlain

• Decision Date: 31 March 1881
• Citation: 1880 WL 14061,97 Ill. 620
• Parties: JOHN GARRICK et al.v.ANGIE P. CHAMBERLAIN et al.
• Court: Illinois Supreme Court

97 Ill. 620

1880 WL 14061 (Ill.)

JOHN GARRICK et al.

v.ANGIE P. CHAMBERLAIN et al.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.Rehearing denied March Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on error to the Circuit Court of Cook county; the Hon. W. W. FARWELL, Judge, presiding.

Mr. ALLAN C. STORY, and Mr. LAWRENCE J. J. NISSEN, for the appellants:

We submit that the case is shown, by the record, to be still pending in this court, and our motion in the Appellate Court to dismiss Chamberlain's writ of error for this reason should have been sustained. When the fact appears from the record no plea is necessary. Kingsbury v. Buckner, 70 Ill. 514; Ogden v. Larrabee, Id. 510; Smith v. Wright, 71 Id. 167.

The certificate of evidence contains a direction to “ here insert section -- and sections -- --” of the Ohio statute. This gave the clerk a discretion to insert the whole or any part of the statute, at his option, and in that respect is a nullity. Lake Shore & Mich. Southern R. R. Co. v. McMillan, 84 Ill. 211; St. Louis, Alton & Terre Haute R. R. Co. v. Dorsey, 68 Id. 326; Drew v. Beall, 62 Id. 164. Sutherland claims also title to the premises under a sale for general taxes and special assessments for the year 1868, due the city of Chicago, under a judgment of the Superior Court, rendered at the March term, 1870, which was affirmed by this court on appeal, May 28, 1871. This sale is assailed on the ground it was made by the city collector. The judgment under which it was made was rendered five months prior to the adoption of the new constitution, and ordered the city collector to make the sale, he then being the only person authorized by law to make the same. The validity of that judgment having been sustained by this court, it can not now be questioned by a privy in estate. It is res adjudicata.

It would be an anomaly in jurisprudence to permit Chamberlain, a privy in estate of Fitch as to these premises, to now come in, in this collateral proceeding, and urge such an objection. 2 Taylor on Ev. 1457, secs. 1513 and 1514; Henderson v. Henderson, 3 Hare, 115; Sminet Rajah v. Kantanea Natchiar, 11 Moo. Ind. App. Ca. 50; Rogers v. Higgins, 57 Ill. 244; Briscoe v. Lloyd, 64 Id. 36; Hamilton v. Quimby et al. 46 Id. 90-94; Aurora City v. West, 7 Wall. 101; Hopkins v. Lee, 6 Wheat. 113; Harris v. Harris, 36 Barb. 94; Parish v. Ferris, 2 Black, 606; Majorin v. Tyler, 40 Mo. 406.

That such a judgment is binding alike upon parties and privies is a rule universally recognized. Kelly et al. v. Donlin et al. 70 Ill. 385; Kingsbury et al. v. Buckner et al. Id. 516; Rising v. Carr, Id. 596; Sheldon et al. v. Patterson, 55 Id. 511; Peterson v. Nehf, 80 Id. 26; Reed v. West, 70 Id. 479; Johnson v. Von Kettler, 84 Id. 315.

The decision in the subsequent suit, by injunction to cancel and set aside the sale, is also conclusive, the injunction operating as a release of all errors. R. S. 1874, ch. 69, sec. 5; Town of Lyons v. Coolidge, 89 Ill. 529.

The record does not show that any reasonable cause was shown to the court below, by the appellants, for the making of the order compelling Garrick to produce an ante-fire abstract of title to the premises. R. S. 1874, ch. 51, sec. 9; Id. ch. 116, sec. 29; Russell v. Mandell, 73 Ill. 137.

Messrs. GRANT & SWIFT, for the appellees:

The Appellate Court did not err in refusing to dismiss the writ of error in that court, because it was not shown that the prior appeal to this court was still pending. The pendency of another suit for the same cause of action must be brought to the attention of the court by a plea in abatement.

The Appellate Court did not err in holding that the tax deed from Herman Lieb to John Forsythe, dated September 11, 1876, was improperly received in evidence by the circuit court. See sec. 8 of the Burnt Records Act, R. S. p. 804.

The appellants failed to meet the requirements of this statute in several important particulars:

1. No assessment whatever was shown or attempted to be shown.

2. The only levy that is shown is one by way of presumption, arising from the fact that judgment was rendered.

3. No precept or execution under which the sale could be made was shown.

The tax sale was void, because made by the city collector after the new constitution took effect, which required all such sales to be made by some general county officer having authority to receive State and county taxes. Art. 9, sec. 4. In support of this point the following authorities are cited: People, etc., v. Maynard, 14 Ill. 414; Sedg. Const. Law, 107; Hills v. City of Chicago, 60 Ill. 86; Otis v. City of Chicago, 62 Id. 299; Webster v. City of Chicago, Id. 302.

Under our law there are three things that must be made to appear affirmatively by a party relying upon a tax deed, before it is admissible in evidence: He must produce a valid judgment against the land for the taxes; a valid precept under which the sale was made, and also make due proof of the notice required by the constitution. Williams v. Underhill, 58 Ill. 138; Cummings v. Springer, 88 Id. 90. The appellants, in order to have a right to introduce the alleged tax deed in evidence, were bound to prove that notice, such as the constitution requires, had been served on Fitch, the owner of the property. Wilson v. McKenne, 52 Ill. 46; Holbrook v. Fellows, 38 Id. 442; Williams v. Underhill, 58 Id. 138.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was the case of a petition of the appellee Angie P. Chamberlain, filed under the Burnt Records act, so called, (Rev. Stat. 1874, p. 838,) in the circuit court of Cook county, on the 26th day of December, 1876, to establish and confirm the alleged title of petitioner as the owner in fee of the west half of lot 5, in block 23, in Carpenter's addition to Chicago.

The appellants, Garrick and Sutherland, were made defendants, who filed their respective answers under oath, neither admitting nor denying the state of the title of the petitioner, avowing ignorance of the same, and admitting that Garrick was in possession of the premises as tenant of Sutherland, as alleged in the petition, Sutherland being the legal owner in fee of the premises.

The decree of the circuit court found, that, although the allegations of the petition as to the state of petitioner's own title, were sustained by the proofs, there was a superior title to the premises vested in Sutherland, who was the owner of the same under a valid sale for non-payment of taxes levied by the city of Chicago, for the year 1868. On removal of the record to the Appellate Court for the First District, the decree was reversed, and the cause remanded with directions to enter a decree in favor of the petitioner, confirming title in her to the premises, as prayed for by the petition. Whereupon Garrick and Sutherland appealed to this court.

In the Appellate Court, Garrick and Sutherland made a motion to dismiss the writ of error there, because it appeared upon the face of the record that an appeal had been prayed and allowed, from the circuit court to the Supreme Court, and the appeal perfected. Plaintiff in error filed a reply to this motion, setting forth, among other things, that the appeal taken to the Supreme Court was dismissed in that court at its September term, 1878, and asking, if the motion was entertained, that time should be allowed to procure a certified copy of the order of dismissal in the Supreme Court. The Appellate Court overruled the motion, and this is assigned for error.

The ordinary mode of taking advantage of the pendency of another suit for the same cause of action, is by plea in abatement. It is answered, that where the fact appears from the record no plea is necessary.

But the record before the Appellate Court did not show that the appeal taken to the Supreme Court was yet pending; it only showed the taking and perfecting of the appeal. It is essential, in a plea in abatement of this character, that it should contain the averment that the former suit is still depending. There was not this averment in the motion, nor did such fact appear by the record of the Appellate Court.

There is no force in the suggestion, that if the appeal was dismissed, under the rulings of this court cited, the dismissal of an appeal is equivalent to an affirmance of the judgment in the court below. It is so, for the purpose of a remedy on the appeal bond, and this is the extent of the decisions. As, in McConnel v. Swales, 2 Scam. 576, where the condition of the appeal bond was, “to pay the debt and costs in case the judgment shall be affirmed on the trial of the appeal,” it was held “that the dismissal of an appeal is equivalent to a regular, technical affirmance of the judgment, so as to entitle the party to claim a forfeiture of the bond, and have his action therefor.”

We find no error in overruling the motion.

Both parties claim title in fee to the premises in question, deducing the same from a common source, to-wit: through conveyances from David Gibson--it being admitted that he was the owner in fee on May 26, 1854.

On the part of the defendants, there was shown in evidence a quitclaim deed dated October 4th, 1876, properly executed, acknowledged, and recorded, from David Gibson and wife to Sutherland, conveying the premises in question to the latter.

Petitioner's claim of title is under a warranty deed from David Gibson and wife, dated February 23, 1858, conveying the premises to one Robert Bolton, and from the latter through mesne conveyances.

The only defect claimed in this chain of title of petitioner is in the acknowledgment of a power of attorney, dated June 12, 1854, from Gibson and wife, to one Zenas Cobb, Jr., to sell and convey the premises,-the deed from Gibson and wife to Bolton purporting to have been executed and acknowledged by Cobb, as the attorney in fact of Gibson and wife.

The alleged defect in the acknowledgment is, that the certificate of...