People ex rel. Peoria Cnty. v. Harrigan's Estate

• Decision Date: 12 October 1920
• Docket Number: No. 13360.,13360.
• Citation: 294 Ill. 171,128 N.E. 334
• Parties: PEOPLE ex rel. PEORIA COUNTY v. HARRIGAN'S ESTATE et al.
• Court: Illinois Supreme Court

294 Ill. 171

128 N.E. 334

PEOPLE ex rel. PEORIA COUNTY

v.HARRIGAN'S ESTATE et al.

No. 13360.

Supreme Court of Illinois.

June 16, 1920.

Rehearing Denied Oct. 12, 1920.

Error to Circuit Court, Peoria County; T. N. Green, Judge.

Claim for unpaid taxes by the People, on the relation of the County of Peoria, against the Estate of Michael Harrigan, deceased. From an order of the probate court allowing the claim, Christopher Harrigan and others, legatees, appealed to the circuit court, which dismissed the appeal, and appellants bring error.

Judgment affirmed.Mansfield & Cowan, of Peoria, for plaintiffs in error.

C. E. McNemar, State's Atty., of Peoria (Dan R. Sheen, of Peoria, of counsel), for defedant in error.

THOMPSON, J.

This writ of error is prosecuted by Christopher Harrigan, and Maggie Harrigan, as surviving legatees under the last will and testament of Michael Harrigan, deceased, to review an order of the circuit court of Peoria county dismissing an appeal from an order of the probate court allowing a claim for unpaid taxes against the estate of Michael Harrigan.

This suit was a simple proceeding to collect unpaid back taxes assessed against Michael Harrigan in his lifetime, but it seems to have been decidedly prolific in its production of thrifty litigation. The case in one form or another has been before this court three times (Heinrich v. Harrigan, 288 Ill. 170, 123 N. E. 309; Id., 291 Ill. 294, 126 N. E. 131;People v. Harrigan, 291 Ill. 206, 125 N. E. 903), and before the Appellate Court on another question. This will be the fifth review on an appellate court on side issues. Counsel for defendant in error use much of their brief in making complaint of the delay occasioned by all this litigation, but the courts cannot be expected to settle the case on its merits until counsel get the question before the courts. The discussion of matters that are not before the court simply tends to confuse the issues, and makes much unnecessary labor for the court in its attempt to determine the issues that are in fact presented. Citation of authorities that do not touch the points before the court confuse the issue and waste the time of the court.

[2] It is first contended by defendant in error that this writ of error should be dismissed, because plaintiffs in error have no authority to prosecute the cause. As a general rule a writ of error must be sued out in the name of the parties to the action in the lower court. Louisville, Evansville & St. Louis Consolidated Railroad Co. v. Surwald, 150 Ill. 394, 37 N. E. 909;Wuerzburger v. Wuerzburger, 221 Ill. 277, 77 N. E. 419,5 Ann. Cas. 628. To entitle a person to sue out a writ of error, he must be a party or a privy to the record, or be one who is injured by the judgment, or who will be benefited by its reversal, or is competent to release errors. McIntyre v. Sholty, 139 Ill. 171, 29 N. E. 43;Anderson v. Steger, 173 Ill. 112, 50 N. E. 665;Granat v. Kruse, 213 Ill. 328, 72 N. E. 744;People v. O'Connell, 252 Ill. 304, 96 N. E. 1008;People v. Lower, 254 Ill. 306, 98 N. E. 557; People v. Harrigan, supra.

The order of the circuit court dismissing the appeal amounted to an affirmation of the order of the probate court awarding the claim of the county. According to the allegations in their assignment of errors, plaintiffs in error are entitled, as legatees under the will of their deceased brother, to all of his property that remains after the payment of his debts. If any unjust or illegal claims are allowed against the estate of Michael Harrigan, plaintiffs in error would be damagedto that extent. They would be benefited by a reversal of the judgment of the circuit court, and they are therefore entitled to sue out this writ of error to review that judgment. Before they can prosecute the writ of error, their interest in the suit must appear in the transcript of the record or be alleged in the assignment of errors. If a writ of error is prosecuted by one who is a party to the record, his interest sufficiently appears without an allegation of interest; but if he is not a party, and his interest does not appear from the record, it must be alleged in the assignment of errors, so as to show his relation to the suit. Gibler v. City of Mattoon, 167 Ill. 18, 47 N. E. 319;Winne v. People, 177 Ill. 268, 52 N. E. 377;Scott v. Great Western Coal Co., 223 Ill. 271, 79 N. E. 53.

Plaintiffs in error allege in their assignment of errors:

‘That the said Michael Harrigan died testate on October 8, 1911, leaving a last will and testament, which will was duly probated and admitted to probate in the probate court of Peoria county in the year 1911; that by the terms of said last will and testament of said Michael Harrigan, deceased, plaintiffs in error, Christopher Harrigan and Maggie Harrigan, and Kate Harrigan, now deceased, were made the sole and only legatees and devisees of said will of Michael Harrigan, deceased, and the said legatees and devisees by the terms and conditions of said will did receive, after the payment of the just debts of Michael Harrigan, deceased, all of the property of which the said Michael Harrigan died seized, both real and personal, to be divided among them equally, share and share alike.’

The assignment of errors stands as the declaration of the plaintiffs in error, and a joinder in error which has the effect of a demurrer does not put in issue the facts alleged, and therefore, without a special plea denying them, they stand admitted. Freitag v Union Stock Yard Co., 262 Ill. 551, 104 N. E. 901.

It is further contended that there is no question of...