Ellis v. People

• Court: Illinois Supreme Court
• Writing for the Court: CARTER
• Citation: Ellis v. People, 199 Ill. 548, 65 N.E. 428 (Ill. 1902)
• Decision Date: 25 October 1902
• Parties: ELLIS et al. v. PEOPLE.

199 Ill. 548

65 N.E. 428

ELLIS et al.

v.PEOPLE. ^*

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from circuit court, Greene county; O. P. Thompson, Judge.

Debt for personal property taxes by the people of the state of Illinois against Lena Ellis and another. From a judgment for plaintiff, defendants appeal. Affirmed.

H. H. Montgomery and Mark Meyerstein, for appellants.

E. W. Painter, State Atty., J. B. Nulton, and Norman L. Jones, for appellee.

CARTER, J.

This was an action of debt against Lena Ellis and Mary Ellis, appellants, brought by the people of the state of Illinois to recover the general taxes for the years 1899 and 1900 assessed on the personal property of appellants. The declaration alleged that appellants were the joint owners of certain moneys, notes, mortgages, and credits on the 1st day of April, 1899, and the 1st day of April, 1900; that appellants were residents of the city of Carrollton, in Greene county; and that said taxes were due and unpaid, except as to the state and county taxes for 1899, which had been paid. Appellants pleaded nil debet and tender of the state and county taxes for 1900. The trial was had before the court by agreement, and the court found the issues for appellee. Motions for new trial and in arrest of judgment were made and overruled, and judgment entered against appellants, jointly, for the whole amount claimed, $623.16. Appellants have appealed from the judgment to this court.

Taking the objections as they arise in chronological order on the record, the first is that no authority was shown from the board of supervisors to institute the suit. The suit is brought by the state's attorney, assisted by other attorneys. While it is true that the state's attorney cannot, of his own motion, begin and carry forward proceedings of this character (Ottawa Gaslight & Coke Co. v. People, 138 Ill. 336, 27 N. E. 924), this objection comes too late in this court. It should have been made at the earliest opportunity in the trial court.

The next objection is that there was no evidence that appellants owned the property alleged in the declaration to have been owned by them on the 1st day of April, 1899, and the 1st day of April, 1900, and what its value was; and that the court should have sustained their motion to exclude appellee's evidence, because it neither established nor tended to establish appellee's right to recover in this case. Appellee offered in evidence the tax books for the years 1899 and 1900, showing the delinquent taxes and the collector's return, and proved by the county treasurer that the state and county taxes for 1899 had been paid by an agent of appellants, but that the town tax, road and bridge tax, city tax for the city of Carrollton, and school tax were unpaid, and that the state and county taxes for 1900 were tendered him by appellants, but that he refused to receive them, and that all taxes for 1900 were unpaid. The records of the board of review for 1899 were introduced, showing that the matter of the assessment against appellants had been taken up, and contained the following: ‘It appearing that the said Lena and Mary Ellis had caused their personal property in moneys and credits to be given in to the assessor in Rubicon township by A. C. Ellis, who claimed to be their agent, the clerk was instructed to take from the Rubicon assessment book the assessment listed to A. C. Ellis, agent, to the amount of $27,000, and list the same to Lena and Mary Ellis in the town of Carrollton, Greene county, Illinois.’ The record of the board of supervisors was also introduced, and showed that H. H. Montgomery, representing appellants, had appeared before the board in the matter of this assessmentand transfer from the town of Rubicon, ‘where it had been given in by A. C. Ellis, agent.’ The ownership and value of the property were admitted by the payment of the state and county taxes for 1899 and the tender of the same taxes for 1900, and there was other evidence sufficient to prove the allegations of the declaration in this regard.

The next objections are that the property of appellants was not subject to taxation in the town of Carrollton, but in the town of Rubicon, and that their residence was not in the city of Carrollton on April 1, 1899, and April 1, 1900. The questions raised involved the residence of appellants and the situs of the property. The father of appellants resided in Rubicon township up to the time of his death, in 1869, and from that time until her death, in 1875, the widow lived in the city of Carrollton with Mary Ellis, and since the widow's death Lena Ellis has been living with her sister in Carrollton. It is claimed that they have always maintained a home at the house of their cousin, A. C. Ellis, in Rubicon township, and have household goods at his house. It is not claimed that they lived on their father's farm. Mary Ellis has a small house in the city of Carrollton, and they have their domicile there; but the evidence shows they have been away nearly half the time, visiting different portions of the United States. They have never had the actual possession of their moneys, bonds, stocks, mortgages, or credits assessed, but these have been in the hands of William Ellis and his son, A. C. Ellis, ever since the death of appellants' father, and have always been kept by their said agents in Rubicon township, and had always been listed for taxation in Rubicon township to A. C. Ellis, as agent of appellants. The court found that appellants residence was in the city of Carrollton, and we think the evidence sustains the finding. The law is that money and choses in action have no situs, but follow the residence of the owner, and the property of appellantswould accordingly be properly listed in the city of Carrollton.

It is, however, contended that, as the money and choses in action were actually situated in the hands of an agent in Rubicon township, they should be assessed to the agent there, according to section 9 of the revenue act, which...