Atkins v. Hinman

• Decision Date: 31 December 1845
• Citation: 2 Gilman 437,1845 WL 3958,7 Ill. 437
• Parties: DAVID ATKINSv.WILLIAM A. HINMAN.
• Court: Illinois Supreme Court

2 Gilman 437

7 Ill. 437

1845 WL 3958 (Ill.)

DAVID ATKINS

v.WILLIAM A. HINMAN.

Supreme Court of Illinois.

December Term, 1845.

OPINION TEXT STARTS HERE

EJECTMENT in the Schuyler circuit court, brought by the appellee against the appellant, and heard before the Hon. Norman H. Purple and a jury, at the April term, 1844. Verdict for the plaintiff below, and judgment thereon, and a writ of habere facias possessionem awarded.

The material portions of the evidence and proceedings are fully stated in the opinion of the court.

W. A. MINSHALL, for the appellant.

I. The judgment and order of sale in 1840 is void, for not pursuing the form given by the statute, and in not filling the blanks left in the statutory form with the substantial allegations of the time at which the collector made his return of the list of lands delinquent for taxes, and in not further stating, “and that the taxes thereon remained due and unpaid on the day of the date of said collector's return.” The form in this proceeding must be strictly pursued, and the facts as to the return of the collector at the time specified by law, and that the taxes then remained due and unpaid, must in this summary proceeding affirmatively appear upon the face of the record to give the court jurisdiction. The order of sale without these facts appearing on the face of the record is not voidable only but absolutely void. Thatcher v. Powell's Lessee, 5 Peters' Cond. R. 28-31; Stead's Executors v. Course, 2 Peters' Cond. R. 151-154, and notes; McClung v. Ross, 4 Peters' Cond. R. 603-606; Buckmaster v. Carlin, 3 Scam. 104; Swiggart v. Harber, 4 Scam. 364; Garrett v. Wiggins, 1 Scam. 335; Hill v. Leonard, 4 Scam. 140; Smith v. Hileman, 1 Scam. 323-5; Fitch v. Pinckard, 4 Scam. 70. The principles maintained by these cases are applicable to all the proceedings under the law of 1839, concerning the title prior to the making of the deed. Hinman v. Pope, 1 Gilman, 131; Williams v. Peyton, 4 Peters' Cond. R. 395, 396, 397.

This is a special power affecting private property and the officer must act in strict conformity to the law giving the power, and the purchaser is bound to inquire whether the officer has so acted. 2 Peters' Cond. R. 151, before cited; Gilbert v. Columbia Turnpike Co., 3 Johns. Cases, 108; Darning v. Smith, 3 Johns. Ch. R. 344; Rex v. Croke, 1 Cowper, 15-18.

II. The order of the court at the September term, 1844, amending the judgment, order of sale and precept of 1840, can not help it, because there was nothing to amend. The previous order was a nullity; from the face of the record the court never had jurisdiction, and clearly no power to amend. Could the court in this kind of summary proceeding under a special statute, which prescribes its course, and that course not pursued in 1840, in 1844 make, by amendment, that legal, which before was illegal and void? The whole proceeding was corum non judice. Thatcher v. Powell's Lessee, 5 Peters' Cond. R. 28-31, and the authorities above cited, and particularly the cases in 1 Scam. 323, 325; 3 Johns. Cases, 108, and 3 Johns. Ch. Rep. 344; 1 Cowper, 15-18.

III. The court, by the common law, and by the provisions of our statute, had no power or right over the judgment and record made at a term previous, by new entries to alter or change the record at a subsequent term of the court in which the judgment was rendered. 1 Petersdorff's Com. Law, 504, 537; R. L. 1833, 64, § 5; Gale's Stat. 49, § 5, and 533, § 20; Rev. Stat. 49, § 5. After the term is ended, clerical omissions only can be amended, and the making or omitting an order in the order book is a judicial, not a clerical error. 1 U. S. Dig. 157, §§ 354, 362, 364, 365, 368, 371, 372, 374.

The amendment was substantial, and for that reason, even in an ordinary proceeding between parties regularly in court, could not have been made. Botkin v. Pickaway Co., Ohio Cond. R. 375. The thirtieth section of the act directs that this form shall be pursued, and that makes the form in this proceeding substance.

The amendment operates to the prejudice of third persons, not parties or privies, or in any way connected with the parties to the suit of Pike v. Hall, it being a collateral proceeding, in which the order of amendment was made. And for this reason, according to common law principles, not allowable. The defendant in this suit never had any notice of the application to amend the judgment, which he would be entitled to, if the proceedings were amendable. But not having had such notice, the amendment is consequently void as to him, unquestionably. An amendment will never be allowed, when it will operate prejudicially upon the rights of third persons. Hart v. Pasmore, 4 Maule & Selwyn; 1 Petersdorff's Com. Law, 503; Hunter v. Todd, 1 Scam. 551.

IV. But if the court had power to make the amendment, and the judgment and order of sale were amendable in these particulars, the judgment is still void because the statement in the recital of the judgment as amended, “that the collector reported the delinquent list on the eighth day of March, 1840, for the taxes of 1839,” if true, shows that the court had no jurisdiction. There then being no term of the circuit court for the county of Schuyler, and that not being the time fixed by law for holding said court, the report was not made in pursuance of law, and therefore void, and all the subsequent proceedings thereon founded. Revenue Law 1839, 12, 14, §§ 25, 27, 32. The further amendment, that the taxes remained due and unpaid at that date, would also prove unavailing, as the report is to be made to a term of court which was not held until afterwards. See same sections of the act of 1839; and from this it appears that the law had not been sufficiently complied with to authorize the court at its March term, 1840, or at the September term, 1844, to render any judgment in the premises. Laws of 1839, §§ 25, 26, 27, 28, 29, 30, 31, 32.

V. If the court had the power to amend, the amendment could only be made from the collector's report and notice, with the advertised list; and in reviewing the amendment with a view to inquire and ascertain whether there was anything to amend by, we insist that the court ought to have examined the original report of the collector and advertised list with the notice on file, to see if the foundation is laid to enter a judgment before an amendment could be made. For the purpose of showing that no such foundation was laid, at the March term, 1840, we offered on the trial of this cause, in connection with the question of amendment, the patent and advertised list and notice, showing that the lands in question were not listed in the name of the patentee, nor advertised in giving the notice as the statute requires. The notice fixing the second Monday of April, 1840, as the time of sale, when the twenty-sixth section of the act requires the sale to be advertised to take place on the second Monday next succeeding the term of the court at which judgment was rendered, and also to show that the land in controversy was not described in the advertisement. And if it appeared from the report, which is the fact, that the land was not listed as the law required, or not described, or that the notice was otherwise not in accordance with the law, the court had no jurisdiction to enter the judgment against the land in controversy, and, therefore, no power or authority to make the amendment.

VI. The same reasons and principles of law apply to the precept offered in evidence herein with others, following, to wit: The precept by the thirty-first section of the act of 1839, is to be a copy of the collector's report, together with the order of the court thereon, etc.,--the form of which is prescribed by the statute and specially directed to be pursued. §§ 29, 30, 31. In this the precept is void, because it does not copy the judgment as it originally was, nor is it a copy of the judgment as amended. The precept recites that the collector returned his report to the circuit court of said county, on the_____ day of April, 1840; the judgment reciting that it was made on the eighth day of March, 1840, thus showing the collector's report to have been made at a time subsequent to the entry of the judgment of the court, when, by law, the report must precede the judgment; and by the certificate of the clerk of the court to the precept it appears that the report of the collector was made at a time different from either the amended judgment or the amended precept, that time being the sixteenth day of March, 1840. This process to be valid must show on its face that such a judgment was rendered by a competent court as will justify its emanation. Hinman v. Pope, 1 Gilman, 131.

VII. The order of the court in 1844, amending the judgment and precept, does not authorize the precept to be amended in this particular, nor is the precept amended in the particular manner required by the order of amendment by inserting the words, “and that the taxes thereon remained due and unpaid, on the day of the date of the said collector's return.”

VIII. The judgment and precept originally if held to be good, notwithstanding the preceding objections, yet are void; in this case there being no description in the judgment or precept of the lands in controversy, and it not appearing in the caption of the collector's report as recited in the judgment and precept, nor any thing appearing upon the report opposite to, or in connection with the name of the patentee or present owner, designating in what section, township and range, said land is situated, they are for this reason void as against this land, and as such lay no foundation for the introduction of the sheriff's deed.

IX. There being no foundation laid for the deed by the introduction of a legal judgment and precept, under the tax law of 1839, against the lands in controversy, the deed should have been excluded. Hinman v. Pope, 1 Gilman, 131.

X. We had the right to show by way of rebutting the statutory prima facie character...