Gage v. People ex rel. Hanberg

• Decision Date: 17 February 1904
• Citation: 69 N.E. 840,207 Ill. 377
• Parties: GAGE v. PEOPLE ex rel. HANBERG, County Treasurer.
• Court: Illinois Supreme Court

207 Ill. 377

69 N.E. 840

GAGE

v.PEOPLE ex rel. HANBERG, County Treasurer.

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Cook County Court; L. C. Ruth, Judge.

Proceedings by the people, on the relation of John J. Hanberg, county treasurer, against Henry H. Gage, for the collection of a special assessment. From a judgment and order of sale, defendant appeals. Reversed.

F. W. Becker, for appellant.

Robert Redfield and William M. Pindell (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee.

This is an appeal from the county court of Cook county, wherein a judgment and order of sale on delinquent city special warrant No. 30,512, for the first installment for a sewer in West Madison street, in the city of Chicago, was had upon the application of the county collector of said county. An appeal from the county court of Cook county was previously prosecuted to this court from the judgment of confirmation of the special assessment for said improvement, and such judgment of confirmation was reversed upon the ground that the costs of making and collecting the assessment were included in the special assessment, contrary to the provisions of the amendatory act of May 9, 1901 (Acts 1901, p. 101). The opinion reversing the judgment of the county court was filed February 21, 1902, and the petition for rehearing was denied April 5, 1902. Gage v. City of Chicago, 195 Ill. 490, 63 N. E. 184.

Upon the application for judgment and order of sale for the delinquent assessment appellant filed objections that the lower court was without jurisdiction, either of the person or subject-matter, to enter judgment of confirmation, upon the grounds, first, that this court had reversed said cause because of an invalid estimate of the costs included in the ordinance, and the county court could not correct such error by a reduction of the assessment roll or otherwise; second, that on remandment said cause was redocketed without the statutory notice; third, that the ordinance, including the estimate of costs, was void, and the judgment of confirmation entered thereon was void; fourth, that no itemized estimate of the cost of the improvement was made a part of the record of the first resolution of the board of local improvements; fifth, that after the entry of judgment of confirmation in the original proceeding the lower court vacated the judgment entered against certain other objectors, on motion of the city, and voluntarily reduced the amount of the assessment of said last-mentioned objectors 20 per cent. without authority of law and to the prejudice of this objector; sixth, the judgment does not conform to the requirements of the statute.

RICKS, J. (after stating the facts).

1. As to the first contention of appellant-that the county court could not eliminate from the assessment roll the costs of making and collecting the assessment, but that a new ordinance would be required in such case-it need now only be said that the question here raised was fully considered by this court in the case of McChesney v. City of Chicago, 205 Ill. 528, 69 N. E. 38, and decided adversely to appellant's contention.

2. It is next urged that the cause was redocketed, in compliance with the remanding order of this court, without the notice required by section 83 of the practice act (Hurd's Rev. St. 1899, c. 110), which provides that, upon a transcript of the order remanding the cause being filed, ‘and not less than ten days' notice thereof being given to the adverse party or his attorney, the cause or proceeding shall be re-instated therein.’ The record shows that a transcript of the order of this court remanding said cause was filed in the court below on the 20th day of April, 1902, and that on the 13th day of May, 1902, the cause was redocketed, and the order of court redocketing the same contained the recital: ‘And it appearing to the court that due notice, in accordance with the law, has been given to all parties concerned in relation to said notice, and the court being fully advised in the premises, it is ordered that the said cause be, and the same is hereby, redocketed, and the cause set down at the foot of the calendar, being No. 91, which is set for trial Tuesday, May 20, 1902.’ Appellant does not deny that he received 10 days' notice of the application to redocket the cause, but contends that the notice was insufficient and void, because it failed to state that appellee had filed, or that there had been filed, in said county court, the mandate of the court remanding said cause. The original notice was not in the files, and could not be found, and appellant asked leave to, or made a motion to be allowed to, supply the lost notice by placing on the files a notice in proper form, but omitting any mention of the filing of the mandate, with a supposed acknowledgment of service by appellant as of the 2d day of May, 1902, and called to the witness stand Robert Redifield, attorney for the collector, and he, having been sworn, testified that he did not know anything about the original notice; that he did not remember when he saw it, and his mind was blank in reference to its contents. The copy of the notice was offered in evidence, and objected to, and the objection sustained. Appellant then offered the various orders of the court, including the order redocketing the cause, the order of confirmation, showing that appellant was defaulted, and other orders entered in the cause, which were also objected to and excluded by the court.

The objection here urged is a collateral attack upon a judgment which recites proper service, and the recitals of which import a verity. Glover v. People, 188 Ill. 576, 59 N. E. 429;Barnett v. Wolf, 70 Ill. 76;Young v. People, 171 Ill. 299, 49 N. E. 503;Perisho v. People, 185 Ill. 334, 56 N. E. 1134. In such cases the alleged errors can only be corrected when they relate to errors and mistakes of the officer of the court, such as mistakes in the dates of the summons, or other like errors, or a mistake such as arises from defects or mistakes in the return of the officer; and in such cases the court can only take cognizance of such alleged errors when they appear from the record itself or the files which constitute a part thereof. Coughran v. Gutcheus, 18 Ill. 390; Barnett v. Wolf, supra. And where the defect appears upon the summons or other process, it cannot be aided by parol evidence.Barnett v. Wolf, supra. In the case at bar it is proposed by parol evidence to show that the original notice on file in the case is lost, and, likewise by parol evidence, to show that a certain writing offered in evidence is a copy of such original notice, and upon that to overcome the recitals of the judgment and avoid the same. If the rule that recitals of the judgment cannot be overcome by parol evidence is sound, then it must necessarily follow that an uncertified paper that must by parol evidence be shown to be a copy of an original paper which...