Harrigan v. Peoria Cnty.

• Decision Date: 21 February 1914
• Citation: 104 N.E. 172,262 Ill. 36
• Parties: HARRIGAN v. PEORIA COUNTY.
• Court: Illinois Supreme Court

262 Ill. 36

104 N.E. 172

HARRIGAN

v.PEORIA COUNTY.

Supreme Court of Illinois.

Feb. 21, 1914.

Appeal from Circuit Court, Peoria County; L. D. Puterbaugh, Judge.

Bill of review by Michael Harrigan against the County of Peoria, in which Maggie Harrigan was substituted as complainant upon the death of the original complainant. From a judgment for defendant, complainant appeals. Affirmed.

See, also, 226 Ill. 270, 80 N. E. 765; 106 Ill. App. 218; 128 Ill. App. 651.Mansfield & Cowan, of Peoria, for appellant.

C. E. McNemar, Co. Atty., and William Jack, both of Peoria, for appellee.

CARTER, J.

This was a bill of review filed in the circuit court of Peoria county by Michael Harrigan to vacate and set aside a decree entered by that court, on the ground that the provisions of the state and federal Constitutions as to due process of law had not been observed in the original proceedings. It is contended in the briefs of appellant that the bill alleged that the original proceedings should be vacated on the ground of newly discovered evidence and for fraud. General and special demurrers were filed to the bill and on a hearing sustained, the bill being dismissed for want of equity, at Harrigan's costs. Pending the hearing in the trial court, the death of Michael Harrigan was suggested, and Maggie Harrigan was substituted as complainant in his stead. The case has been brought direct to this court because of the contention that the provisions of the Constitution as to due process of law have been violated. In order to understand the questions to be considered a brief history of the case and the litigation connected therewith is necessary.

In September, 1897, one Adaline Cole died intestate, seised and in possession of a certain lot in the city of Peoria. In 1898 the premises were assessed for taxes in the name of her estate, and, the taxes for that year being unpaid, the property was sold June 17, 1899, to Michael Harrigan, the complainant, for $265.87. Shortly after the death of Adaline Cole, one Richard Welch, claiming to be her common-law husband, took out letters of administration on her estate in the probate court of Peoria county, and filed an inventory of her effects, including the real estate here in question. Subsequently, on March 28, 1900, the state's attorney of Peoria county filed an information under our statute of escheats in the circuit court of that county, setting forth the fact of Adaline Cole's decease, intestate and without legal heirs, and alleging that Richard Welch falsely claimed to be her common-law husband, but that he never held such a relationship, and further alleging that Adaline Cole left no one, under the statute of descent, entitled to said real estate, and that the property therefore had escheated to the county, as provided by statute. Richard Welch, previous to the escheat proceedings, had conveyed his alleged interest in the property to his brother, John B. Welch. The latter filed his answer, claiming to be the owner. While such escheat proceedings were pending, on July 10, 1901, Harrigan filed his affidavit with the county clerk of Peoria county demanding a tax deed for the said premises under the tax sale made to him in 1899. Five days thereafter, on July 15, 1901, an order was entered in the escheat proceedings in the circuit court finding that the county had acted in said proceedings in all respects according to law; that Adaline Cole left no heirs or representatives capable of inheriting said premises; that Richard Welch was not her common-law husband; and that the county of Peoria was seised of said lot. July 22, 1901, the county of Peoria filed a bill in chancery in the circuit court of Peoria county alleging the ownership of the property in question, setting forth the sale thereof for taxes to Michael Harrigan in 1899, and the fact that he had filed his affidavit with the county clerk and was demanding a deed to said premises. It further alleged that Harrigan had not complied with the law in such a manner as to entitle him to a deed; that, when he filed such affidavit, the escheat proceedings were pending in the circuit court of Peoria county; and that, under sections 216 and 217 of the Revenue Law, before filing said affidavit it was his duty to give due notice to the county of Peoria, the owners, or parties interested, and that he had not done this. The bill further alleged that, if a tax deed were issued as requested in such affidavit, it would cast a could upon the title of the county, and prayed that the county clerk be enjoined from executing the deed to Harrigan, and that the tax certificate to him should be held null and void. Harrigan filed an answer to this bill, and, on a hearing, the circuit court held that the affidavit was insufficient, and entered a decree canceling said tax certificate and enjoining the county clerk from issuing a deed thereunder, requiring, however, the county to refund to Harrigan the amount he paid for the land at said tax sale, together with interest and costs. From this decision, Harrigan appealed to this court. The appeal, under the statute that then existed, was dismissed on the ground that no freehold was involved. The cause was then taken by appeal to the Appellate Court for the Second District (106 Ill. App. 218), which held that the affidavit was informal and insufficient, and that the trial court had properly canceled the tax certificate and enjoined the county clerk from issuing a tax deed thereunder, but reversed the cause on the ground that the decree did not properly find the amount due Harrigan, and directed that the matter be referred to a master to compute the correct amount. Under the mandate of the Appellate Court, the trial court referred the cause to a master, who filed a report showing the amount due. This report was approved in the circuit court, and a decree was entered therein, conforming in all other details to the former decree in said cause. From this last decree, an appeal was again taken to the Appellate Court, and that court affirmed the decree of the lower court in all respects. 128 Ill. App. 651. The case was then brought to this court on appeal, and the judgment of the Appellate Court was affirmed (226 Ill. 270, 80 N. E. 765), a rehearing in this court being denied in April, 1907.

This bill of review was filed in the circuit court of Peoria county December 30, 1910. It sets out in a general way the proceedings as given above, and makes a part of the bill the pleadings in the original escheat proceedings filed in the circuit court of Peoria county, and also the pleadings in the original chancery proceedings canceling the certificate and enjoining the issuing of a tax deed thereunder. The bill is of great length, and we shall only attempt to set out the material allegations as stated by counsel for appellant in the briefs, including substantially all the allegations as to fraud or newly discovered evidence. It is alleged that the said land could not escheat, under the statute, to the county of Peoria, and that the escheat proceedings carried on by the county of Peoria, as well as the bill for an injunction, were improperly and illegally brought by the state's attorney for said county; that the state's attorney was not authorized by the county to institute either of said proceedings; that the county did not have possession of the premises at the time the bill for injunction was filed; that the county authorities imposed upon the court by fraud and circumvention, leading the court to believe that the county did have possession of said premises at that time; that the court was imposed upon by fraud and circumvention, and thereby led to believe that the county of Peoria was a necessary party to be notified, under said section 216 of the Revenue Law, by Michael Harrigan before he was entitled to a tax deed; that said sections 216 and 217 of the Revenue Law did not apply to the county of Peoria, and that fact was overlooked by the court in the former proceedings; that said escheat proceedings were wholly void for want of proper parties, and also for defective notice of publication; that the appellee, the county of Peoria, in the years 1900 and 1901 received taxes for said years on the said lot from Michael Harrigan, when it claimed to be the owner of said land, which amounted to actual fraud upon Harrigan; that the fact that the proceedings under the former litigation were in violation of the Constitutions of the United States and of the state of Illinois was not known to Michael Harrigan until shortly before the filing of this bill of review.

[1] Some discussion is found in the briefs as to whether this is a bill of review or a bill in the nature of a bill of review. As the same principles are generally applicable in this county to all varieties of this species of bills (Story's Eq. Pl. [10th Ed.] § 403), it is unnecessary to discuss this point. For all practical purposes, all bills of review or bills in the nature of bills of review are divided into three general classes-bills for error appearing on the face of the decree, bills upon discovery of new matter, and bills based upon allegations of fraud impeaching the original decree. Story's Eq. Pl. (10th Ed.) §§ 412, 426; 2 Daniell's Ch. Pl. & Pr. (6th Am. Ed.) c. 33, § 5; Griggs v. Gear, 3 Gilman, 2;Schaefer v. Wunderle, 154 Ill. 577, 39 N. E. 623.

[2] A bill of review for error apparent upon the face of the record or to impeach a decree for fraud may be filed without leave, but leave of court must be obtained before the filing of a bill of review for newly discovered evidence; and such leave is also necessary where the averment of newly discovered evidence is united to or accompanied by a charge of fraud in obtaining the decree, or united with allegations as to errors of law on the face of the record. 2 Beach's Modern Eq. Pr. § 868; 3 Ency. of Pl. & Pr. 586; Glos v. People, 259 Ill. 332, 102 N. E. 763; Griggs v. Gear, supra; Schaefer v. Wunderle, ...