Larrison v. the Peoria

• Decision Date: 31 January 1875
• Citation: 77 Ill. 11,1875 WL 8255
• Parties: ABEL LARRISON et al.v.THE PEORIA, ATLANTA AND DECATUR RAILROAD COMPANY et al.
• Court: Illinois Supreme Court

77 Ill. 11

1875 WL 8255 (Ill.)

ABEL LARRISON et al.

v.THE PEORIA, ATLANTA AND DECATUR RAILROAD COMPANY et al.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Logan county; the Hon. LYMAN LACEY, Judge, presiding.

Messrs. JOHN M. & JOHN MAYO PALMER, for the appellants.

Messrs. INGERSOLL & PUTERBAUGH, and Mr. W. S. BUSH, for the appellees.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was a bill in chancery, filed by appellants, in the Logan circuit court, on behalf of themselves and other taxpayers, against the railroad company, town collectors and others, to restrain the collection of a tax.

The bill alleges that the town auditors in the towns of Atlanta and Oran, on the 12th of August, 1873, made a certificate that there was due certain sums, to be paid for interest on bonds issued to aid in the construction of the railroad. The bill charged that there was issued by the authorities $37,000 of bonds, and that the town authorities had delivered a portion, and that the president of the railroad company had possessed himself of another portion, without the consent of the supervisor or town clerk; that the town auditors had certified that the interest on the bonds was a town charge, and delivered the same to the county clerk, to be extended as a tax on the real and personal property in the town; and that the county clerk claims that he, in the discharge of his duty, is compelled to extend the same on the taxable property in the towns.

The bill charges that the railroad company claims to be organized under a special law of the General Assembly, under which the officers acted in constructing the road, but complainants deny that it was ever constitutionally adopted by the General Assembly, and claim that all acts performed in the levy of this tax are therefore void; that the road is not completed, and the officers of the company represented that they would proceed promptly to construct the railroad from Peoria, by way of Atlanta, to Decatur, and that any bonds that should be voted therefor should be faithfully devoted to the construction of the road, and the company had, or soon would have, sufficient funds for that purpose; that all of these representations were false, and were made knowing them to be false, and with intent to cheat and defraud the town and taxpayers, and to obtain the bonds without a valuable consideration therefor.

It is charged that it never was intended in good faith to complete the road; that it is not completed; that the work has not been prosecuted promptly and in good faith; that the officers of the company still hold the bonds, or have converted them to their own use, and that they have sold the franchises and abandoned the construction of the road. On filing the bill, a temporary injunction was issued staying the collection of the tax.

The railroad company, Dunham, Dills, Lambert and the town of Atlanta answered the bill, the answer being verified by the affidavit of Dills and Dunham, to be used on a motion to dissolve the injunction. Prior to the hearing of that motion, complainants moved to suppress the answer, because, so far as it related to the railroad company, it was not under the seal of the company, and was not signed by one of its officers; and as to the answer of the town of Atlanta, because it was not signed by an officer of the town. This motion was overruled. The answer denies all of the material allegations of the bill.

Subsequently, a motion to dissolve the injunction came on to be heard, on bill, answer and affidavits filed. The court dissolved the injunction and the bill was dismissed, and complainants bring the case to this court by appeal.

The answer, amongst other things, stated that the bonds were not in the hands of the company, but had been sold and delivered to innocent purchasers. And this and other allegations in the answer were fully sustained by the proof, and appellants make no point on that question in their argument, but insist that the court erred in refusing to strike the answer from the files, and in assessing damages for the wrongful suing out of the injunction.

The answer was called for without oath, and was only sworn to for the purpose of being used as an affidavit on the motion to dissolve. Such an answer has always been held to be a mere pleading, only denying the allegations of the bill and putting complainant to his proof, and to disclose any special defense he may rely upon. And although it is more regular to require a corporation to answer under seal, we feel no inclination to reverse a cause on that ground alone. Where the evidence sufficiently sustains a full answer, to which there is no objection, we would not be warranted in reversing because one of the defendants had failed to attach its seal. There is no suggestion that this answer is not sufficient as to Dunham, Dills and Lambert. It sets up the entire defense, which applies as well to the railroad company and the town of Atlanta as it does to them, and the same is true as to the officers having charge of the collection of the taxes.

Had the railroad company set up a defense peculiar to themselves, then it would have been different. The proceeding was virtually against the...