Lenhart v. Miller

• Court: Illinois Supreme Court
• Writing for the Court: FARTHING
• Citation: Lenhart v. Miller, 375 Ill. 346, 31 N.E.2d 781 (Ill. 1941)
• Decision Date: 12 February 1941
• Docket Number: No. 25852.,25852.
• Parties: LENHART et al. v. MILLER, County Clerk, et al.

375 Ill. 346

31 N.E.2d 781

LENHART et al.

v.MILLER, County Clerk, et al.

No. 25852.

Supreme Court of Illinois.

Dec. 16, 1940.

As Modified on Denial of Rehearing Feb. 12, 1941.

Suit by George W. Lenhart and others, taxpayers of the Town of Georgetown, Vermilion County, Illinois, to enjoin Dan Miller, County Clerk, from extending, and the County Treasurer from collecting, taxes on property of plaintiffs for payment of principal of and interest on certain road bonds. From a decree for plaintiffs, the LaSalle National Bank & Trust Company, holder of the bonds, appeals.

Affirmed.Appeal from Circuit Court, Vermilion County; G. W. Bristow, judge.

Winston, Strawn & Shaw and Poppenhusen, Johnston, Thompson & Raymond, all of Chicago (Floyd E. Thompson, James H. Cartwright, Charles J. Calderini, and Thomas E. Kiddoo, all of Chicago, of counsel), for appellant.

L. A. Lowenstein, I. R. Carter, and Horace E. Gunn, all of Danville, for appellees.

FARTHING, Justice.

Appellees, taxpayers of the town of Georgetown, Vermilion county, Illinois, sued to enjoin the county clerk from extending, and the county treasurer from collecting, taxes on the property of appellees for the payment of the principal of and interest on certain road bonds. The amended complaint alleged that a majority of the legal voters voting at the special election, held under section 61 of the Roads and Bridges act, Ill.Rev.Stat.1939, chap. 121, par. 67, upon the question of issuing $25,000 in bonds, voted against the proposition. The vote was 271 against and 256 for. Notwithstanding this, the county clerk caused the levy and extension of taxes to be made against the property of appellees and the county treasurer had collected such taxes from appellees and other taxpayers. The prayer was that the county clerk be permanently enjoined from extending, or causing to be levied and enforced, any further taxes against the property of appellees pursuant to said bond issue proceedings, and that the county treasurer be compelled to return to appellees the amounts collected from them under the illegal levy, or so much thereof as should be found to belong to them. The county clerk and county treasurer of Vermilion county, the only remaining defendants, answered denying the allegations of the amended complaint. At the hearing counsel for both sides agreed there was no dispute as to the facts, that there was no doubt that at the election in question the proposition was defeated, and that it would be unnecessary to bring the town officials before the court as witnesses, but that the essential facts could be testified to by attorneys for appellees ‘who have personally investigated the facts.’ Thereupon Horace E. Gunn, an attorney for appellees, testified that he had talked with the town clerk, Ivan Rucker, and had examined the records in his possession; that he examined a document which Rucker stated was the return of the canvassing board, and of which Gunn had a photostatic copy. According to this document the bond issue proposition was defeated by a vote of 271 against to 256 for. This witness further testified the record book of the town of Georgetown contained the minutes of a special meeting on July 23, 1938, which recited, in substance, that the report of the canvassing board was read and accepted, with the result as above stated. He said Rucker told him this action at the town meeting in fact occurred. Rucker also told Gunn the representative of the bond house which originally purchased the bonds was informed the proposition had lost; that two or three weeks later the same representative said there was another law under which the bonds could be issued without a vote of the people, that the representative produced papers for the issuance of bonds for the town officers to sign, but that none of these papers made any reference to any election having carried; that the bonds were thereafter issued under this supposed law which required no vote of the people, and delivered to Doyle, O'Connor and Company through their agent Bill Collins. Gunn also stated that at the time of this suit the bonds were held by the LaSalle National Bank and Trust Company, appellant here, which was represented by the law firm of Winston, Strawn & Shaw; that Walter Dysert, of Danville, an attorney for defendants, had forwarded that firm a copy of the complaint in this cause, and a copy of the return of the canvassing board above described, and asked if they desired to intervene, and was informed they had no desire to do so in a case involving the taxpayers. Gunn also testified he discussed the case with that law firm and asked them if they desired to intervene in behalf of the bondholders, and was informed they did not. The assistant State's attorney agreed the facts as stated by Gunn appeared to be the truth. The decree entered January 15, 1940, adjudged the tax proceedings for the issuance of bonds pursuant to the election were void and of no effect as to appellees, and enjoined defendants from extending and collecting taxes on appellee's property on account of said tax proceedings.

February 2, 1940, appellant filed in the circuit court a petition for leave to intervene as an additional defendant, for leave to file its motion to set aside the decree, and for leave to file its motion to dismiss the complaint. This petition was accompanied by a motion to set aside and a motion to dismiss. By this petition it was stated petitioner owned all of these bonds that were issued and they are apparently valid upon their face, duly signed by the commissioner of highways and the town clerk of the town of Georgetown; that petitioner purchased the bonds without notice of any irregularity in the proceedings preliminary to their issue; that the first notice petitioner had of any irregularity or infirmity in said bonds was on or about December 13, 1939, when it learned of the pendency of this cause; that it immediately began investigating the facts, and that it was engaged in the preparation of a petition for leave to intervene and in the preparation of its defense to the complaint when it learned a decree had been entered on or about January 15, 1940. The petition averred petitioner was a necessary party to the cause, that the complaint sought to adjudicate the validity of petitioner's bonds, and that no valid decree could be entered affecting the validity of the bonds or the collection of taxes to pay the same unless petitioner was made a party. Finally, the petition asserted petitioner was a bona fide purchaser for value of said bonds, that its rights arising out of its ownership were sought to be injuriously affected by the complaint herein and are so injuriously affected by the decree that it should be permitted to intervene and make its defense. With this petition an affidavit by one of the attorneys for appellant was filed. This affidavit set forth affiant's correspondence with Dysert in regard to the question of whether or not appellant should intervene in this suit. It was the position of affiant that appellant should not intervene but that the rights of the bondholders could best be asserted in an independent action if that should become necessary. Affiant had a copy of the complaint, but from the affidavit it appears he was of the opinion the plaintiffs in that suit would try to contest the election by showing the return of the canvassing board, which affiant believed showed the proposition had carried, was incorrect. He had formed this erroneous opinion because what purported to be a certified copy of the return of the canvassing board was submitted to Chapman & Cutler, who passed upon the question of the validity of the bond issue for the original purchasers, which copy showed the bond issue had carried. Affiant further stated he later learned, about January 15, 1940, that the township officials claimed the bonds had been issued in spite of an adverse vote, on advice of the representative of the bond house; that he then decided to send an attorney to Danville to investigate the facts; that January 22, this attorney, Perry M. Chadwick, advised him of the result of his investigation and affiant decided to intervene. January 23, 1940, he was advised a decree had been entered. A hearing was had on this petition April 8, 1940, and Ivan Rucker testified to substantially the same facts Gunn had testified to at the hearing on the complaint, over objection by counsel for petitioner that the petition for leave to intervene should first be passed upon. The court stated the whole matter should be gone into and continued the hearing until April 22, 1940, when Collins, the representative of the bond house, and Peter Glodkowski, the highway commissioner, could be present. April 13, 1940, appellant filed its notice of appeal from the decree entered January 15, 1940, while its petition for leave to intervene was still pending in the circuit court. Counsel for appellant states this was necessary, because the ninety-day period allowed for taking an appeal expired on that day; and if appellant had not appealed then, and its petition for leave to intervene had been later denied it could not have appealed from the decree as a matter of right.

Appellees have filed a motion to dismiss the appeal on the ground the decree is not a final and appealable order. This motion was taken with the cause. The rule is that the filing of a motion to vacate or set aside by a party to the cause stays the judgment or decree, and it does not become final so as to start the running of the time limited for suing out a writ of error or perfecting an appeal until the motion has been disposed of (Hosking v. Southern Pacific Co., 243 Ill. 320, 90 N.E. 669), and it stays final judgment so that the court can act on the motion at a subsequent term or after thirty days from the entry of the decree. Grubb v. Milan, 249 Ill. 456, 94 N.E. 927. However, we...