Dep't of Finance v. Schmidt

• Decision Date: 11 October 1940
• Docket Number: No. 25669.,25669.
• Citation: 374 Ill. 351,29 N.E.2d 530
• Parties: DEPARTMENT OF FINANCE v. v. SCHMIDT.
• Court: Illinois Supreme Court

374 Ill. 351

29 N.E.2d 530

DEPARTMENT OF FINANCE v.

v.SCHMIDT.

No. 25669.

Supreme Court of Illinois.

Oct. 11, 1940.

Action by the Department of Finance against Leslie Schmidt to recover tax allegedly due under Retailers' Occupation Tax Act. From an adverse judgment, Leslie Schmidt appeals.

Affirmed.Appeal from Circuit Court, St. Clair County; Maurice V. joyce, judge.

MacDonald, Meyer & Meyer, of East St. Louis, for appellant.

John E. Cassidy, Atty. Gen. (Henry G. Miller, of Chicago, and W. F. Gray, of Springfield, of counsel), for appellee.

GUNN, Justice.

Appellee, the Department of Finance of the State of Illinois, brought suit against Leslie Schmidt, doing business as the Schmidt Auto Repair, appellant, in the circuit court of St. Clair county, to recover $405.22 due the State of Illinois under the Retailers' Occupation Tax Act and obtained judgment from which appellant appeals directly to this court, as the revenue is involved.

The complaint, after setting out jurisdictional matters, alleges that the defendant had failed to make returns showing receipts of sales made at retail, and that he was notified of the time and place of a hearing for the purpose of determining the amount of tax due, and that a hearing was had upon which the Department of Finance determined a total amount of $415.85 was duefrom the defendant, and notified him thereof. Appellant admits all these charges in the complaint. The complaint further alleged $10.67 had been paid by appellant, leaving a balance of $405.22 due, for which judgment was prayed. Appellant denies this paragraph of the complaint. Additional defenses were made to the effect that a suit had been previously brought for the same cause of action and dismissed by the plaintiff and judgment rendered against the plaintiff, which is in full force and effect, and, further, that said suit was dismissed without notice to the defendant as required by the Civil Practice Act. The complaint and answer were both verified. A motion to strike the answer was made because it specifically admitted all the things necessary for recovery under the Retailers' Occupation Tax Act, and because the previous suit dismissed was without prejudice, and, further, because it appeared from the complaint that the notice of assessment by the Department of Finance was given after the previous suit had been dismissed, which would have entitled appellant to have the amount specified in the notice reviewed by certiorari as provided by statute. The motion to dismiss was not verified but certified to by an Assistant Attorney General. There was no objection to the lack of verification. The motion to strike was allowed, and judgment was entered against appellant.

The first point raised is that a general denial of the amount due alleged in the complaint raises an issue as to the amount due. Under the Retailers' Occupation Tax Act (Ill.Rev.Stat.1939, chap. 120, par. 451) a method of reviewing an assessment made by the Department of Finance is provided, and we have held that in a suit to collect such unpaid taxes the question cannot again be retried or reviewed. Department of Finance v. Goldberg, 370 Ill. 578, 19 N.E.2d 593. The admissions contained in the answer are that a hearing was had, that an amount was determined and that appellant was given notice thereof. The only method provided by law for reviewing...