People ex rel. Bestold v. Toluca State Bank
| Decision Date | 21 December 1927 |
| Docket Number | No. 18439.,18439. |
| Citation | 327 Ill. 638,159 N.E. 240 |
| Parties | PEOPLE ex rel. BESTOLD, County Collector, v. TOLUCA STATE BANK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Tax proceeding by the People, on the relation of Fred Bestold, County Collector, against the Toluca State Bank. Judgment for plaintiff, and defendant moved to vacate the judgment. The motion was denied, and defendant appeals.
Reversed and remanded.Appeal from Marshall County Court; Homer Barney, Judge.
George W. Hunt, of Peoria, for appellant.
This appeal is prosecuted from a judgment and order of sale of the county court of Marshall county of the real estate of the Toluca State Bank. There was extended against the west 75 feet of lot 12, in block 73, Santa Fé addition to the city of Toluca, a tax of $148.73. There was also assessed in the name of the Toluca State Bank, against personal property, a tax of $1,287.84; but neither tax was paid to the collector. The judgment and order of sale were entered June 6, 1927. June 25th of the same year, which was during the June term, appellant filed a motion to vacate the judgment entered by default. Appellant had filed no objections nor in any manner entered an appearance before the judgment. The motion asked to be permitted to show cause why the judgment for personal taxes ought not to have been returned delinquent and adjudgedagainst the land. Appellant offered to pay the tax against its real estate, cost of advertisement, and interest, but objected that the personal property tax of $1,287.84 was not a tax against personal property of the bank and could not be charged against its real estate. The motion was denied, and this appeal follows. No brief has been filed by appellee.
[1] The bank is in the hands of a receiver. Neither tax was paid. The county treasurer and ex officio collector failed to note on his book, opposite the name of appellant, any reason for failure to collect the personal tax, and entered no oath upon his book setting forth the delinquency, that the tax is unpaid, and that the collector used due diligence to collect the same, as required by the Revenue Act (Smith-Hurd Rev. St. 1927, c. 120). The Revenue Act provides that the tax on personal property, except in case of removal or where the tax assessed against personal property cannot be made out of the personal property, cannot be charged against real estate. The act requires that if a collector is unable to collect the tax on the personal property by reason of removal or insolvency of the party against whom the tax is charged, he shall, at the time of returning his books, note in writing, opposite the name of the person against whom the tax is charged, the cause of failure to collect the same, and must also make oath that the cause of delinquency is correct, that the tax is still due and unpaid, and that he has used due diligence to collect the same, and the affidavit shall be entered upon the collector's books. People v. Scheifley, 252 Ill. 486, 96 N. E. 890. The collector's books show a personal property tax was assessed against the Toluca State Bank of $1,287.84, and also show a tax assessed against the real estate of the bank of $148.73. There was no notation made by the collector on his books of any reason for failure to collect the personal property tax; no oath made that the tax is due and unpaid and that the collector had used due diligence to collect the same.
[2][3]The notice of the intended application for judgment against delinquent lands and lots for taxes for 1926 stated the collector would apply for judgment against such lands and lots for delinquent taxes due for the year 1926, ‘and the back taxes, special assessments, interest, penalties and costs due from prior years.’ The notice contained no statement that the collector would seek to charge any personal property tax on any real estate. In Drennen v. People, 222 Ill. 592, 78 N. E. 937, the court said:
Under the Revenue Act, where a collector seeks judgment for sale of real property to pay a personal property tax, he must select some particular tract to be charged with the delinquent personal property tax and designate such tract in his application or demand for judgment and sale; and the statute is not complied with where there is no statement that a personal property tax is to be charged on any real property. People v. St....
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