Neff v. Smyth

• Decision Date: 27 September 1884
• Citation: 1884 WL 9937,111 Ill. 100
• Parties: PETER NEFFv.ROBERT SMYTH.
• Court: Illinois Supreme Court

111 Ill. 100

1884 WL 9937 (Ill.)

PETER NEFF

v.ROBERT SMYTH.

Supreme Court of Illinois.

Filed at Mt. Vernon Sept. 27, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding.

Messrs. GREEN & GILBERT, for the appellant:

Appellee having appeared and filed objections, the judgment of the county court is conclusive until reversed. Graceland Cemetery Co. v. People, 92 Ill. 620; People v. Smith, 94 Id. 229; Belleville Nail Co. v. People, 98 Id. 403; Gage v. Bailey, 102 Id. 11; Karnes v. People, 73 Id. 275; Blackwell on Tax Titles, 221; Freeman on Judgments, (2d ed.) sec. 135.

By failing, on his appearance, to object to a particular tax, he admits it is legal, and is estopped by the judgment from disputing such admission. Howley v. Griswold, 42 Barb. 18; Bank v. Hazard, 30 N. Y. 226; Baker v. Pratt, 15 Ill. 568; Welland Canal Co. v. Hathaway, 8 Wend. 483; Degell v. Odell, 3 Hill, 219; Snodgrass v. Ricketts, 13 Cal. 362; Niven v. Belknap, 2 Johns. 572; Strong v. Ellsworth, 26 Vt. 366; Hermann on Estoppels, secs. 328, 331.

Sections 129 and 229 of the Revenue law have sole reference to “forfeited taxes,” and sections 226 and 227 alone relate to simple back taxes. The forfeited taxes are to be added to the current taxes, and are all due for that year, and may be treated as the current year's taxes due. The back taxes, when no forfeiture has taken place, are required to be brought forward in separate columns designating the year or years.

Even if the advertisement, collector's report recorded in judgment, and precept, were not in the form prescribed by statute, they were sufficient as against appellee. Karnes v. People, 73 Ill. 279.

The objections now urged were all cured by section 191 of the Revenue act. Chiniquy v. People, 78 Ill. 577; Beers v. People, 83 Id. 493; Fisher v. People, 84 Id. 496; Buck v. People, 78 Id. 566.

Even if the precept was irregular and imperfect, it was process under the seal of the court, and contained all the information necessary to its proper execution. It is like an execution. Swiggart v. Harber, 4 Scam. 371; Durham v. Heaton, 20 Ill. 264; Newman v. Willitts, 60 Id. 519; Morgan v. Evans, 72 Id. 580; Chestnut v. Marsh, 12 Id. 173; Hill v. Figley, 25 Id. 158.

No placita is necessary when it appears the judge was present, hearing objections, etc. Dukes v. Rowley, 24 Ill. 210.

The judgment and precept are each in substantial compliance with the statute. Revenue act, sec. 194.

Mr. JOHN M. LANSDEN, and Mr. ANGUS LEEK, for the appellee:

The judgment was void for want of a placita or convening order of the court. Young v. Thompson, 14 Ill. 380; Lawrence v. Fort, 20 Id. 338; Dukes v. Rowley, 24 Id. 210.

The tax judgment record did not show the year or years for which the taxes were due. Revenue act, secs. 182, 184, 188, 194, 216, 277; Mann v. People, 102 Ill. 346.

That a specification of the year or years for which the taxes are due, is necessary, see Morgan v. Camp, 16 Ill. 175; Prickett v. Hartsock, 15 Id. 279; Marsh v. Chestnut, 14 Id. 223.

The judgment embraced certain illegal taxes, which vitiated the whole tax, and the judgment itself. Cooley on Taxation, 295; Burroughs on Taxation, 301; Blackwell on Tax Titles, 192; Treadwell v. Patterson, 51 Cal. 637; Bucknell v. Story, 36 Id. 67; Gliddon v. Chase, 35 Maine, 90; Thayer v. Mayo, 34 Id. 139; Grosvenor v. Cheney, 48 Id. 363; Boyden v. Moore, 5 Mass. 365; Pickett v. Breckenridge, 22 Pick. 297; Cheney v. Stevens, 97 Mass. 77; McLaughlin v. Thompson, 55 Ill. 249.

The alleged appearance of appellee in the county court could bind him only as to the particular tax to which objections were filed.

Res judicata and estoppel apply only to matters put in issue. 2 Bouvier's Dic. 465; 7 Rob. Prac. 159; Bigelow on Estoppel, 27; Hanna v. Read, 102 Ill. 596; Miller v. McMannis, 57 Id. 158; Eastman v. Cooper, 15 Pick. 279; Outram v. Morewood, 3 East, 346; Burlen v. Shannon, 3 Gray, 392; Arnold v. Arnold, 17 Pick. 7; Davis v. Spooner, 7 Id. 147; Sawyer v. Woodbury, 7 Gray, 502.

The precept was null and void. It did not show the year or years for which the taxes were due, nor was it properly certified, as required by section 194 of the Revenue law. There was a fatal variance between it and the judgment. Revenue act, sec. 194.

The precept can not be aided by the clerk's certificate. Young v. Thompson, 14 Ill. 380; Merrill v. Swartz, 39 Id. 108; Sidwell v. Schumacher, 99 Id. 426.

The precept was not certified as required by section 194. Again, there is a fatal variance between the judgment and precept. Pitkin v. Yaw, 13 Ill. 251; Eppinger v. Kirby, 23 Id. 521.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment by Neff, against Smyth, for the recovery of lots 12 and 13, block 2, in Cairo, Illinois, where judgment was for the defendant, and the plaintiff appealed. Plaintiff's claim of title was under a tax deed for the lots, dated June 18, 1881, founded upon a tax sale of them, made June 17, 1879, by virtue of a precept issued June 16, 1879, upon a tax judgment against the lots, rendered May 28, 1879, for taxes for the year 1878, and forfeited taxes of the year 1877 and prior years.

It appears that the lots were delinquent for the taxes of 1873, and judgment was given therefor at the May term, 1874. The lots were again delinquent for the taxes of 1874 and forfeited tax of 1873, and judgment was given therefor at the August term, 1875. The lots were again delinquent for the taxes of 1875, and forfeited taxes of 1874 and the previous year, and judgment was rendered therefor at the June term, 1876. The lots were again delinquent for the taxes of 1876, and forfeited taxes of 1875 and previous years. When application was made for judgment for such taxes at the June term, 1877, the record shows that the defendant appeared in court, by his attorneys, and filed objections, questioning the legality of a portion of the taxes for which judgment was asked, viz., the “County Railroad Interest Tax,” and “City Railroad Interest Tax,” of 1876, which objections were sustained by the court, and judgment only given for the residue of the taxes not objected to. The lots were again delinquent for the taxes of 1877, and forfeited taxes of 1876 and previous years. When application was made for judgment therefor, at the May term, 1878, the record shows that defendant again appeared in court, by his attorneys, and filed objections, questioning the legality of a portion of the taxes for which judgment was asked, viz., the county and city “Registered Railroad Bond Interest Taxes” of 1877, which objections were sustained by the court, and judgment only given for the remainder of the taxes not objected to. The lots were again delinquent for the taxes of 1878, and forfeited taxes of 1877 and previous years, and when application for judgment therefor was made at the May term, 1879, defendant again appeared in court, by his attorneys, and filed objections, questioning the legality of a portion of the taxes for which judgment was asked, viz., the city and county “Bond Interest Taxes” of 1878, which objections were sustained by the court, and the said judgment of May 28, 1879, under which the lots were sold to plaintiff, only rendered for the rest of the taxes not objected to.

When the lots were offered for sale under the judgment of May 28, 1879, defendant, as well as plaintiff, were both personally present, and when plaintiff bid on the first lot offered, defendant promised to pay the taxes if plaintiff would withdraw his bid and the sheriff would adjourn the sale for half an hour, to enable the defendant to go and get the money and return, which proposition was assented to; but after waiting an hour, and defendant failing to return, the lots were struck off and sold to plaintiff for the accumulated taxes of six years, amounting to $2549.84.

It is objected to the tax judgment of May 28, 1879, that it was void because the tax judgment record does not contain a formal placita or convening order of the court, and Young v. Thompson, 14 Ill. 380, Lawrence v. Fast, 20 Id. 338, and Dukes v. Rowley, 24 Id. 210, are cited in support of the objection. In the case first named the defect was, that it did not appear, from the judgment record, “at what term, or in what year, the judgment was rendered.” Nothing is there said about a convening order. In the second case a convening order is spoken of, the court saying: “This record does not show what is sometimes called the convening order of the court. It does not show by whom the court was held, nor even in what court the judgment was pronounced. It merely shows the entry of the judgment order. There it begins and there it stops.” In Dukes v. Rowley, the question was as to the sufficiency of the convening order, it not stating that the clerk and sheriff were present, and the court said: “It shows that the judge was present holding the term, and we find that the record does show that business was done by the court, and that a record of its proceedings was kept. This was sufficient,” etc. We regard the latter case as going to sustain the present judgment in the particular in question. True, there does not appear in the tax judgment record book, here, any convening order, but such record book does show the county judge was present; that business of a judicial character was passed upon; that the court adjourned and reassembled, and that a record was kept of the proceedings of the court. If this so appeared, we think it enough, although it did not thus appear by any formal convening order. The tax judgment record book in evidence showed that the judgment in this case was rendered on May 28, 1879, in the county court of Alexander county, at the May term thereof, 1879, by Reuben S. Yocum, county judge, the judgment being thus signed by him. The judgment does not appear to have the defects which, in the cases cited, were pointed out as existing in the judgments there.

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