Gill v. Lynch

• Decision Date: 22 October 1937
• Docket Number: No. 24142.,24142.
• Citation: 10 N.E.2d 812,367 Ill. 203
• Parties: GILL, County Collector, v. LYNCH et al. SAME v. NASH et al.
• Court: Illinois Supreme Court

367 Ill. 203

10 N.E.2d 812

GILL, County Collector,

v.LYNCH et al.

SAME

v.NASH et al.

No. 24142.

Supreme Court of Illinois.

Oct. 22, 1937.

Proceedings by Joseph L. Gill, County Collector of Cook County, against John P. Lynch and others, and against Thomas D. Nash and others. From an adverse decree, petitioner appeals.

Affirmed.Appeal from Circuit Court, Cook County; Walter J. LaBuy, judge.

Thomas J. Courthey, State's Attorney, of Chicago (Jacob Shamberg, Marshall V. Kearney, Manuel E. Cowen, and John C. Connery, all of Chicago, of counsel), for appellant.

Martin J. McNally, of Chicago, for appellee Thomas D. Nash.

Amberg, Ott, Dahlin & Livingston, of Chicago (Frank L. Paul and Robert G. Appel, both of Chicago, of counsel), for appellee First Nat. Bank of Chicago.

JONES, Justice.

This case arose out of a petition filed in the circuit court of Cook county by Joseph L. Gill, county collector, asking for an order against his predecessor in office, Thomas D. Nash, and against the First National Bank of Chicago, to pay over certain money collected by Nash under the ‘Skarda Act’ to be applied on delinquent taxes. The question in the case is whether or not the appointment of a receiver for real estate by a county court having no jurisdiction of the subject matter is validated by a subsequent transfer of the cause to the proper court, under the provisions of the statutes relating to venue. Appellant claims that the transfer validates the appointment, while appellees contend that the county court had no jurisdiction for any purpose except to transfer the cause to the proper court, and that all antecedent proceedings are void and their void character is unaffected by the transfer.

The facts are not in dispute. In July, 1933, the taxes on certain premises then owned by John B. Lynch were delinquent for the years 1928 and thereafter. Joseph B. McDonough, then county treasurer and ex officio collector of Cook county, was, on his application to the county court, appointed receiver for the premises, under the so-called ‘Skarda Act’ (Laws of 1933, pp. 873, 874 [Smith-Hurd Ill.Stats. c. 120, §§ 238a and note-238c]). He subsequently died, and Thomas D. Nash, his successor as county treasurer and ex officio collector, was appointed by the county court as receiver for the premises.

In October, 1934, this court held that county courts have no jurisdiction over the appointment of receivers in delinquent tax matters under the provisions of the Skarda Act. McDonough v. Gage, 357 Ill. 466, 192 N.E. 417, 419;People v. Jarecki, 357 Ill. 475, 192 N.E. 419. Thereafter, upon Nash's application, he was appointed receiver of the premises by the circuit court of Cook county. He then petitioned the county court to transfer the venue of all receivership petitions filed and pending therein to the circuit court, which was accordingly done. At that time Nash had on hand, as receiver of the premises, the sum of $1,005.58, on deposit in the First National Bank of Chicago, which deposit was still there when the decree in this case was entered.

Joseph L. Gill succeeded Nash as county treasurer and ex officio collector. He was substituted as receiver by the circuit court, and the cause originating there was consolidated with the transferred cause. Gill filed a petition against Nash and the bank, asking that the money remaining in the hands of Nash and on deposit be turned over to him, as receiver, to be used for the payment of taxes on the premises. The answers of the defendants allege, and the decree finds, that the appointments of McDonough and Nash as receivers by the county court were void; that the transfer of the cause to the circuit court did not validate the appointments; and that Gill, as county treasurer and ex officio collector, is not entitled to the money collected under the void order.

Pending the proceedings, a trust deed on the premises was foreclosed, and the purchaser and lessee were made parties to the proceeding. Subsequent to the filing of appellant's petition, Nash filed an interpleader in the circuit court tendering the money on hand and praying that appellant be restrained from prosecuting this suit, but no motion for a temporary injunction was made and no injunction was awarded. At the time the decree herein was entered, the money was not paid into court because of lack of service upon all the parties in interest, and the interpleader was still pending. Gill appeals from the decree denying his petition.

Section 1 of the 1891 act relating to change of venue (Smith-Hurd Ill.Stats. c. 146, § 36 and note; Cahill's Rev.Stat. 1933, c. 146, par. 37), as then in force, provided: ‘That whenever any suit or proceeding shall hereafter be commenced, in any court of record in this state, and it shall appear to the court where the same is pending, that the same has been commenced in the wrong court or county, then upon motion * * * the court shall change the venue * * * to the proper court or county, and the same when the venue shall be so changed, shall be then pending and triable in such court or county to which the same shall be so changed the same as in other cases of change of venue.’ It further provides that the court shall require the plaintiff to pay all...