Dickey v. People ex rel. Kochersperger

• Decision Date: 28 March 1896
• Citation: Dickey v. People ex rel. Kochersperger, 160 Ill. 633, 43 N.E. 606 (Ill. 1896)
• Parties: DICKEY et al. v. PEOPLE ex rel. KOCHERSPERGER, County Collector.
• Court: Illinois Supreme Court

160 Ill. 633

43 N.E. 606

DICKEY et al.

v.PEOPLE ex rel. KOCHERSPERGER, CountyCollector.

Supreme Court of Illinois.

March 28, 1896.

Appeal from Cook countycourt; O. N. Carter, Judge.

Application on the relation of D. H. Kochersperger, county collector, against Charles T. Dickey and others, to sell lands for delinquent special assessments.From a judgment for relator, respondents appeal.Affirmed.

Mason Bros., for appellants.

J. D. Adair, for appellee.

CARTER, J.

This is an appeal from a judgment of sale rendered by the county court of Cook county against appellants' lands on the application of the county collector for delinquent special assessments.Appellants objected to the entering of such judgment for the sole reason that the court did not acquire jurisdiction in the assessment proceedings, and that the judgment of confirmation was therefore void.The record and files in the assessment proceedings were offered in evidence in support of appellants' objection.The affidavit of the mailing of the notices to the property owners was sworn to on the 6th day of June, 1892, and the first day of the term of court at which such owners were notified to appear was the 13th day of the same month.In Perry v. People, 155 Ill. 308, 40 N. E. 468, we held that the statute required that not less than 10 days' notice should be given before the first day of the term.There is nothing in the affidavit from which it can be ascertained whether the notice was mailed 10 days before the first day of the term or not, and it is insisted that, as the affidavit was sworn to and filed within the 10 days next preceding the first day of the term, it is evidence only that the notice was mailed when the affidavit was sworn to, and that, in order to give the court jurisdiction to render the judgment of confirmation, it should affirmatively appear that the notice was mailed at least 10 days before the first day of the term.In Hertig v. People, 159 Ill. 237, 42 N. E. 879, in reference to the sufficiency of the certificate of publication of notice of the hearing on the application for judgment of confirmation, we said: ‘Even were the certificate of publication in fact insufficient, appellant could take no advantage of it in this, a collateral proceeding; for in such a case the presumption would be that the court heard and acted upon other and sufficient evidence to sustain the finding.Barnett v. Wolf, 70 Ill. 76;Harris v. Lester, 80 Ill. 307.’And in Reedy v. Camfield, 159 Ill. 254, 42 N. E. 833, in considering the subject of collateral attack upon a judgment of a court of competent jurisdiction we said: ‘Where a court finds in its decree or judgment that it has acquired jurisdiction by publication, it will be presumed in a collateral proceeding, that there was sufficient evidence before the court to warrant the judicial finding.Service by summons can only be proved by the written return of the officer, and, if such return contradicts the finding of the court,...