Gage v. People ex rel. Hanberg

• Decision Date: 16 December 1903
• Citation: 207 Ill. 61,69 N.E. 635
• Parties: GAGE v. PEOPLE ex rel. HANBERG, County Treasurer.
• Court: Illinois Supreme Court

207 Ill. 61

69 N.E. 635

GAGE

v.PEOPLE ex rel. HANBERG, County Treasurer.

Supreme Court of Illinois.

Dec. 16, 1903.

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

Application by the people, on relation of John J. Hanberg, against Henry H. Gage, for a judgment for delinquent special assessments. From a judgment in favor of relator, defendant appeals. Reversed.F. W. Becker, for appellant.

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

SCOTT, J.

This is an appeal from a judgment of the county court of Cook county against the property of appellant for the first and second installments of a special assessment made for paving Turner avenue, in the city of Chicago, which installments had been returned as delinquent. At the July term, 1902, the county collector made application to the county court of that county for judgment against the same real estate for the same installments of this special assessment. The objections then made were: First, that the contracts for making said improvement were not let to the lowest responsible bidder; second, that said contract provided that, in the prosecution of said work, eight hours should constitute a day's labor, and that said contractor should not employ, or permit to be employed, any persons other than citizens of the United States, which contract was so drawn in accordance with an ordinance of the city of Chicago; third, that the proposal or bid for said work was based, in part, upon said provisions; fourth, that the entry of judgment herein would deprive the objector of property without due process of law, etc. The court overruled these objections, and entered judgment on July 28, 1902, against the property for the delinquent installments. Gage appealed from that judgment to this court, and assigned as error the overruling of each of said objections, and also the fact that the judgment entered did not conform to the statute, and the further fact that the judgment was not signed by the judge. Appellee filed in this court a confession that there was error in the record, in that the judgment and order of sale were not signed by the judge; and upon that confession, without considering the other errors assigned, this court reversed the judgment (69 N. E. 80), and remanded the cause to the county court of Cook county for further proceedings, where the cause was redocketed on April 25, 1903. The matter was again presented to the county court at its July term, 1903, when Gage again presented objections in substance the same as those presented at the former hearing, and in addition he objected that the issues involved were res judicata by the decision and mandate of this court on the appeal from the judgment of July, 1902, and that upon remandment the former application was redocketed, and is still pending in said county court.

In support of the contention that this matter is res judicata, it is argued that because the same errors were assigned on overruling the same objections on the former appeal, and inasmuch as the judgment was then reversed, it must be presumed that the judgment of this court was that all the errors which were assigned were well assigned, and reliance is placed upon Johnson v. VonKettler, 84 Ill. 315. In that case, which was then in this court for the third time, appellant reargued a question which had been decided by this court upon an earlier appeal, and this court held that it would not again consider the point; that, if the appellant had desired to reargue the proposition, he should have presented his petition for a modification of the former opinion in apt time. In Smyth v. Neff, 123 Ill. 310, 17 N. E. 702, the validity of a tax deed was involved. The case had been before in this court on an appeal from a judgment in an action of ejectment, in which the court below had held a certain tax deed involved in the suit invalid. This court on the first appeal had reversed that judgment and remanded the cause; holding that the objections made against the tax deed were not sufficient to invalidate it, and that it should have been held good. When the case came the second time to this court, this court said: ‘Concerning the points considered by the court in its former opinion, the discussion must now be regarded as forever closed, and the decision adverse to the defendant must stand.’ It is said that the additional testimony heard on the second trial in the court below was as to a matter of no consequence, and that to consider again the question of the validity of the tax deed ‘would simply be to reconsider the case upon exactly the same record. That is not allowable under any practice that has ever obtained in this state.’ To the same effect are the other cases cited by appellant. We think the present case plainly distinguishable from those above referred to. The assignments of error, other than that calling attention to the fact that the judgment lacked the signature of the judge, were not considered by this court at all, and the fact that this court, on confession by appellee, held that assignment good, does not mean that all other errors assigned were meritorious.

It is said that this application is a different application from the one upon which judgment was entered in July, 1902; that the former application is still pending, and it was therefore error to enter judgment in this second application for the same installments of the special assessment that were covered by the first application. It does not certainly appear that there were two independent applications. The bill of exceptions, in reciting the evidence offered by objector, after showing the final order of this court filed in the county court on April 11, 1903, contains this language: ‘Also the order of this court entered April 25, 1903, redocketing said cause, which, it was shown, is the final order entered.’ If this order, which does not appear elsewhere in the transcript of the record, was introduced in evidence, it should have been set out in full in the bill of exceptions, so that this court could see what the order was. What is meant by the recital that this was the final order, we are unable to determine, because it appears from the transcript that thereafter the judgment appealed from was entered by the county court on August 3, 1903, overruling the objections and directing a sale, and it does not appear from the adstract that there were two applications pending for judgments against the same property for the same installments at the same time. The notice of application by the collector for judgment, which is set out in the transcript, appears to be a notice of application for judgment for the third installment of this special assessment, and in no wise supports appellant's contention that there was a second independent proceeding instituted for the collection of the first and second installments....