People ex rel. Southfield Apartment Co. v. Jarecki

• Decision Date: 18 January 1951
• Docket Number: No. 31784,31784
• Citation: 408 Ill. 266,96 N.E.2d 569
• Parties: PEOPLE ex rel. SOUTHFIELD APARTMENT CO. et al. v. JARECKI, Judge.
• Court: Illinois Supreme Court

Page 569

96 N.E.2d 569

408 Ill. 266

PEOPLE ex rel. SOUTHFIELD APARTMENT CO. et al. v. JARECKI, Judge.

No. 31784.

Supreme Court of Illinois.

Jan. 18, 1951.

Albert E. Jenner, Jr., and Edward I. Rothschild, Chicago (Poppenhusen, Johnston, Thompson & Raymond, Chicago, of counsel), for relators.

John S. Boyle, State's Atty. and Kirkland, Fleming, Green, Martin & Ellis, all of Chicago (Gordon B. Nash, Joseph B. Fleming, Edward C. Caldwell, Joseph H. O'Connor, and Peter G. Kuh, all of Chicago, of counsel) for respondent.

THOMPSON, Justice.

Relators, petitioners here, are owners of real estate in Chicago, against which taxes for the year 1946 were levied by the various taxing bodies in Cook County. Relators paid these taxes under protest and filed written objections thereto pursuant to section 235 et seq. of the Revenue Act, (Ill.Rev.Stat.1949, schap. 120, par. 716 et seq.,) upon the county collector's application for judgment and order of sale. On hearing, judgment was entered sustaining objections to levy items of the county of Cook, Forest Preserve District of Cook County, city of Chicago and Board of Education of the city of Chicago, and overruled objections to tax levy items of Cook County bond and interest fund, Cook County highway fund, Sanitary District of Chicago corporate fund, and Board of Education of the city of Chicago educational fund. This judgment was entered on March 28, 1950. On April 10, 1950, the collector filed notice of appeal from so much of the judgment as sustained objections to 1946 taxes of the county for Cook and the Forest Preserve District of Cook County. Relators filed no cross appeal but on April 25, 1950, moved to vacate the judgment of March 28, 1950. Respondent, Jarecki, refused to consider this motion on the ground that the county court had lost jurisdiction of the case upon perfection of the collector's appeal on April 10, 1950.

On April 26, 1950, relators filed notice of appeal from the judgment of March 28, 1950, and from the order of the county court refusing to consider their motion to vacate. This appeal is separate from and does not purport to be a cross appeal from the appeal of the county collector. The two appeals are from different separate items of the judgment of March 28, 1950. On June 5, 1950, relators presented to the respondent judge for certification and filing a report of proceedings had in the cause before respondent. Respondent refused to certify or examine the report of proceedings on the ground that he was without jurisdiction to consider its sufficiency or to certify it, and that the relators should have perfected a cross appeal under Rule 35 of this court, S.H.A. ch. 110, § 259.35. Motion for leave to file a petition for writ of mandamus was then filed on this court. The petition alleges that facts as set out above and prays that respondent be required to answer and show cause why mandamus should not issue commanding respondent to entertain jurisdiction and settle and certify the report of proceedings. Respondent's answer admits the facts as alleged, but denies the relators' right to the writ sought.

The controlling question here is whether, on appeal by the collector from some but not all the items in a judgment rendered in a tax objection proceeding under section 235 of the Revenue Act (Ill.Rev.Stat.1949, chap. 120, par. 716), the objector, seeking to appeal from other and separate items in such a judgment, must proceed by cross appeal under Rule 35 of this court or must prosecute a separate appeal.

Relators contend that appeals from judgments in tax proceedings are governed by section 237 of the Revenue Act (Ill.Rev.Stat.1949, chap. 120, par. 718), and not by the Civil Practice Act or the rules adopted by this court pursuant thereto; that the Revenue Act provides for appeal by notice of appeal only, and cross appeal is not available to bring to the court items of the tax judgment not involved in the collector's appeal. They further contend that the only means by which relators may have review of the items of the judgment adjudged adversely to them is by separate notice of appeal; that in the court below they complied with the provisions of the Revenue Act by filing their separate notice of appeal within thirty days from the rendition of the judgment, and that they presented their report of proceedings in apt time. It is therefore urged that they have a clear legal right to have respondent settle and certify the report of proceedings so that their separate appeal may be completed.

Relators urge that, under section 235 of the Revenue Act, tax judgments are specifically made several 'against each tract or lot or part of a tract or lot, for each kind of tax or special assessment included therein; * * *.' They argue that the appeal of the collector was from items of the tax judgment in which relators' objections were sustained, whereas relators seek to appeal from items of the judgment wherein their objections were overruled; that these items are distinct and separate judgments from any of which separate appeals may be perfected.

Relators rely on a line of cases, the first of which is People ex rel. Abt v. Vogt, 262 Ill. 170, 104 N.E. 226. In that case an appeal was taken by the collector from one item of a tax judgment. The objector in that case assigned cross errors as to items other that that on which the appeal was taken. It was held that such cross errors were improperly brought for the reason that the various items of the judgment were separate and distinct. By analogy to the rule that where one party to a decree appeals only from a portion of a decree, the other matters contained in the decree are not before the court, the court held that appellee, by cross errors, could not review other independent items of the tax judgment, but must appeal from those items.

In People ex rel. Stuckart v. Insurance Exchange Building, 288 Ill. 486, 123 N.E. 527, this court reaffirmed the holding in the Vogt case. To the same effect is People ex rel. Stuckart v. Chicago & Alton Railway Co., 289 Ill. 282, 124 N.E. 658.

Chief reliance is placed in People ex rel. Hudson v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., 360 Ill. 180, 195 N.E. 631. There the objector appealed from one item of the tax judgment and the collector filed notice of cross appeal, under Rule 35 of this court and the Civil Practice Act, as to other items not raised on the primary appeal. The question was raised whether the items not included on the primary appeal could be presented by cross appeal. In discussing the question whether the Civil Practice Act and rules of this court governed, the court considered section 74 of the Civil Practice Act, which, so far as pertinent, provided that review in civil proceedings shall be by notice of appeal. It then referred to section 1, which provides that the Civil Practice Act shall apply to all civil proceedings unless such application is expressly limited, and to subsection 2 of section 31 of the same act which provides, among other things, that in actions in which the procedure is regulated by special statute, such special statute shall govern. The court then pointed out that section 192 of the Revenue Act, in force at that time, (now section 237, Ill.Rev.Stat.1949, chap. 120, par. 718,) provided for appeals to the Supreme Court within thirty days after rendition of the judgment on the party praying the appeal executing a bond, and further providing that no appeal shall be allowed, nor any writ of error operate as a supersedeas, unless the party praying the appeal deposits with the collector an amount equal to the amount of the judgment and costs. Other provisions of the Revenue Act providing for penalties and credit to be given by the collector in the amount of the deposit were pointed out and this court then held that the Civil Practice Act did not apply and, the items of the tax judgment being separate and distinct judgments as to each item, matters not included in the primary appeal could not be brought here by cross appeal and that a separate appeal was required. This holding is quoted from in the later case of People ex rel. Pickerill v. New York Central Railroad Co., 391 Ill. 377, 63 N.E.2d 405, although in that case the question involved here was not involved.

Respondent points out that in 1935, shortly after the decision in People ex rel. Hudson v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., 360 Ill. 180, 195 N.E. 631, discussed above, section 192 of the Revenue Act then in effect (Ill.Rev.Stat.1935, chap. 120, par. 210, Smith-Hurd Rev.St. 1935, c. 120, § 180,) was amended to read 'Appeals from the judgment of the court may be taken to the Supreme Court (as in other civil cases by the party appealing, filing a notice of appeal) within thirty days from the rendition of such judgment.' The right thus given remained conditioned upon the deposit with the collector of an amount equal to the amount of the judgment and costs. It appears this court has not had occasion to construe the meaning of the words 'as in other civil cases', as used in this section as amended. The Revenue Act of 1939 reenacted the section in which the above quotation appears as section 237. Respondent contends that this section, as thus amended, makes the provisions of the Civil Practice Act, and of Rule 35 of this court, applicable to appeals from tax objection proceedings.

This contention presents the question whether, under this provision of the statute, an appellee seeking review of items not involved in the primary appeal must present them by cross appeal filed within ten days after service of notice of appeal as prescribed in Rule 35 of this court.

The provisions of section 1.22 of the act on construction of statutes, (Ill.Rev.Stat.1949, chap. 131, par. 1.22,) affords some help where the phrase 'other civil cases' is defined as follows, "Other civil cases' and 'ordinary civil cases' or any equivalent expression, when used with...