O'Connell v. Stuckart

• Decision Date: 07 February 1917
• Docket Number: 10382.,Nos. 10560,s. 10560
• Citation: 114 N.E. 928,276 Ill. 430
• Parties: PEOPLE ex rel. O'CONNELL, County Collector, v. NOONAN. PEOPLE ex rel. STUCKART, County Collector, v. HICKS et al.
• Court: Illinois Supreme Court

276 Ill. 430

114 N.E. 928

PEOPLE ex rel. O'CONNELL, County Collector,

v.NOONAN.

PEOPLE ex rel. STUCKART, County Collector,

v.HICKS et al.

Nos. 10560, 10382.

Supreme Court of Illinois.

Dec. 21, 1916.

Rehearing Denied Feb. 7, 1917.

Appeal from Cook County Court; John H. Williams, Judge.

Appeal from Cook County Court; David T. Smiley, Judge.

Proceedings by the People, on the relation of the county collector of Cook County, for judgment against certain real estate for delinquent taxes and special assessments. Judgment was attacked by motions by Edward T. Noonan and by George I. Hicks, trustee, and others. From judgments for the People, objectors appeal, and their appeals are consolidated. Affirmed.William J. Donlin and Edward T. Noonan, both of Chicago, for appellants.

Harry F. Atwood, Harry F. Hamlin, and Henry R. Baldwin, all of Chicago (Samuel A. Ettelson, Corp. Counsel, of Chicago), for appellees.

COOKE, J.

At the June term, 1913, of the county court of Cook county the county collector of Cook county made application for judgment and order of sale against certain real estate for delinquent taxes and special assessments. Among the tracts against which judgment was sought were certain lots in Edward T. Noonan's subdivision of the city of Chicago, against which there had been extended amounts aggregating about $4,200 on account of a special assessment. Appellant Edward T. Noonan filed objections to the application for judgment against these lots. A hearing was had upon these objections, and the cause was taken under advisement. On July 31, 1913, judgment was rendered against all lots and tracts as to which no objections had been filed, but no judgment was then rendered against the lots involved in this appeal. Thereafter, in June, 1914, the collector advertised appellants' lots for sale under the judgment of July 31, 1913. Noonan thereupon filed his motion to quash the process and notice of sale, alleging that there had been no judgment and order of sale against said lots. The court sustained this motion, and on October 20, 1914, entered an order finding, in substance, that no judgment had been rendered against said lots on July 31, 1913, and directing that said process and notice of sale be quashed. Afterwards, on December 5, 1914, the county court rendered judgment and entered an order of sale against said lots on the application of the county collector made at the June term, 1913. The judgment order recites, among other things, that E. T. Noonan was present in person and by W. J. Donlin, his attorney, and that the order was entered with the consent of the said E. T. Noonan. It also recites that said E. T. Noonan did there in open court waive and release all errors in the judgment and order or in the prior proceedings, and agreed that no appeal should be prosecuted from said judgment, that no writ of error should be sued out thereon, and that no steps of any kind should ever be taken, by a bill in chancery or otherwise, to prevent or interfere with the collection thereafter of the said special assessment, by the sale of the property assessed or otherwise. This judgment was thereafter attacked in the county court of Cook county by two separate proceedings, one by appellant Edward T. Noonan, who on September 22, 1915, filed what he designated a motion under section 89 of the Practice Act to correct certain errors of fact by striking out of the judgment order those portions which stated that he was present in person and by attorney and consented to the entry of the order and waived and released all errors, etc. The other proceeding was a motion by appellants George I. Hicks, trustee, Joseph Hedrick, trustee, and John A. McCormick, to quash the process and notice of sale under said judgment upon two grounds: (1) That the judgment of December 5, 1914, was not a valid judgment; and (2) that said judgment was invalid because of the prior order and judgment of October 20, 1914, wherein, it was alleged, the same matters were adjudicated and settled adversely to appellees. Both motions were decided against appellants and judgments were entered accordingly. Separate appeals followed, which have been consolidated in this court.

In support of the motion of appellant Noonan to correct certain errors of fact under section 89 of the Practice Act by striking out portions of the judgment order of December 5, 1914, he offered the affidavits of John E. Owens, who was the judge of the county court at the time the judgment of December 5, 1914, was rendered, and of William J. Donlin, Noonan's attorney, and also his own affidavit, which in substance set forth that said judgment of December 5, 1914, was rendered upon the last day of the term of office of said Owens; that the order was handed to said Owens by counsel for the city of Chicago, who stated to him that the matter was pending under advisement and requested him to sign the same; that neither said Noonan nor said Donlin, his attorney, was present in court when the judgment order was signed; and that said order is incorrect in its recitals to the effect that Noonan was present in person and by attorney, that he consented to the order and that he released all errors, etc. The judgment order of October 20, 1914, was also offered in connection with the affidavits. The collector appeared and filed objections to the form and sufficiency of the motion. As a motion of this kind is in the nature of a new suit (Domitski v. American Linseed Co., 221 Ill. 161, 77 N. E. 428), the motion took the place of a declaration and the objections made amounted to a demurrer.

Section 89 of the Practice Act abolishes the writ of error coram nobis, and provides that all errors in fact committed in the proceedings of any court of record, and which by the common law could have been corrected by that writ, may be corrected by the court in which the error was committed, upon motion in writing made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. It will thus be seen that while the writ of error coram nobis has been abolished, the same errors which at the common law could have been corrected by that writ may now be corrected, under section 89 of the Practice Act, upon motion in writing by the court in which the error was committed.

‘The office of the writ of coram nobis is to bring the attention of the court to and obtain relief from errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian; or coverture, where the common-law disability still exists; or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake, these facts not appearing on the face of the...