People v. Miller

• Decision Date: 17 June 1930
• Docket Number: No. 19963.,19963.
• Citation: 339 Ill. 573,171 N.E. 672
• Parties: PEOPLE v. MILLER, Receiver, et al.
• Court: Illinois Supreme Court

339 Ill. 573

171 N.E. 672

PEOPLE

v.MILLER, Receiver, et al.

No. 19963.

Supreme Court of Illinois.

April 17, 1930.

As Modified on Denial of Rehearing June 17, 1930.

Suit by the People of the State of Illinois, for the use of the School Directors of School District No. 48 in Montgomery County, against the Illinois Coal Corporation, Rice Miller, as receiver, and another. From a decree dismissing bill, complainant appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Montgomery County; Thomas M. Jett, judge.

Lester K. Vandever, State's Atty., and J. D. Wilson, both of Nokomis, J. E. Hogan, of Chicago, and John W. Coole, of Taylorville, for the People.

Lawrence T. Allen, of Danville, and Dryer & Brown, of Hillsboro, for appellees.

DUNN, J.

The people, for the use of school directors of school district No. 48 in the county of Montgomery, filed a bill in the circuit court of that county to the January term, 1929, for the foreclosure of a lien for the taxes levied by the school district for the years 1926 and 1927 upon certain real estate alleged to have been owned and in the possessionof the Illinois Coal Corporation and Rice Miller, its receiver, on the first day of April in those years. Besides the Illinois Coal Corporation and its receiver, the Lincoln Coal Corporation, which had become the owner of the real estate in question, was made a defendant. The receiver answered, neither admitting nor denying the allegations of the bill but demanding strict proof. A demurrer filed by the Lincoln Coal Corporation was overruled and it answered. The cause was heard on the pleadings and evidence and a decree rendered dismissing the bill for want of equity, from which the complainant has appealed.

Section 253 of the General Revenue Act of 1872 (Smith-Hurd Rev. St. 1929, c. 120, § 238) provides that the lien of taxes on real property may be foreclosed whenever the taxes for two or more years on the same description of property shall have been forfeited to the state. The appellees in their brief state the questions, four in number, for consideration on this appeal, and confine their argument to the discussion of these four questions, insisting that they are all jurisdictional, which may be taken advantage of in a collateral attack upon the judgments of the county court, which are at the foundation of the case stated in the bill. The appellees contentions are: (1) That the certificates of publication of the delinquent list both in 1926 and 1927 are defective and insufficient to give the county court jurisdiction to render a judgment and order of sale for taxes because not shown to have been made by either the publisher or his authorized agent; (2) that in each year the delinquent list and certificate thereto were not filed with the clerk of the county court; (3) that the levies of the tax were invalid, the first because it was made for the wrong year, the second because it did not purport to be made for any year; (4) that the judgments for taxes and orders of sale are void because rendered at the June term of the county court and no such term is authorized by law.

Section 182 of the Revenue Act (Smith-Hurd Rev. St. 1929, c. 120, § 170) requires the county collector to publish in a newspaper printed and published in his county an advertisement giving notice that he will apply to the county court, at a term stated, for judgment against lands and lots which are delinquent in the payment of taxes which have become due thereon and for an order to sell such lands and lots for the satisfaction of such judgment. The act does not provide any mode of proving such notice, and therefore, as provided by section 1 of chapter 100 of the Revised Statutes, the certificate of the publisher, by himself or his authorized agent, with a written or printed copy of such notice annexed, stating the number of times the same shall have been published and the dates of the first and last papers containing the same, is sufficient proof of the publication. The certificates of publication of notice of the application for judgment contained in the record were in the following form:

‘I, J. C. Colvin, manager of the Hillsboro Journal, a secular newspaper of general circulation, and printed and published for more than six months prior to this publication at the city of Hillsboro, county of Montgomery, and State of Illinois, do hereby certify that the foregoing list of lands, town, city and village lots, upon which the taxes, interest, cost and special assessments due thereon and remaining unpaid for the year 1926 and prior years, is the true copy of the same as furnished by Earl H. Swingle, county treasurer and ex-officio collector in and for said county of Montgomery, in the State of Illinois, and as published in the Hillsboro Journal in number 70, volume 75, dated May 12, 1927, and at least three weeks prior to the first day of the June term, A. D. 1927, of the county court of Montgomery county, Illinois, and that the whole of the advertisement of the said list, is contained in the said list aforesaid.

‘Dated at Hillsboro, Montgomery county, Illinois, this 12th day of May, A. D. 1927.

‘J. C. Colvin,

‘Manager of the Hillsboro Journal.

‘Subscribed and sworn to before me this 12th day of May, A. D. 1927.

‘Virginia Blockburger, Notary Public.’

This form of certificate has been held insufficient evidence of publication of the notice because it does not certify that the maker of the certificate is the publisher of the paper or his authorized agent (McChesney v. People, 174 Ill. 46, 50 N. E. 1110;People v. Toluca State Bank, 327 Ill. 638, 159 N. E. 240) and does not certify that the Hillsboro Journal is a secular newspaper of general circulation and published for more than six months prior to the publication (People v. Coal Belt Electric Railway Co., 311 Ill. 29, 142 N. E. 495). The maker of the certificate certifies only to what follows the word ‘certify.’

However, judgment was entered in the form prescribed by section 191 of the Revenue Act (Smith-Hurd Rev. St. 1929, c. 120, § 179), finding that due notice was given of the intended application for judgment, and the appellant contends that this finding was sufficient to give the court jurisdiction to render judgment against the lands and could not be attacked in this collateral proceeding, while the appellees contend that the application for judgment against lands for delinquent taxes is a special statutory proceeding and its judgment may be attacked in a collateral proceeding. In none of the decisions cited does it appear, as it does in this case, that the court made the finding that due notice had been given of the intended application for judgment against the lands and lots and no consideration was given to the effect of such finding.

Section 224 of the Revenue Act as amended in 1879 (Laws of 1879, p. 252) provides that: ‘Any judgment for the sale of real estate for delinquent taxes rendered after the passage of this act except as otherwise provided in this section, shall estop all parties from raising any objections thereto or to a tax title based thereon, which existed at or before the rendition of such judgment, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered, and as to all such questions the judgment itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessments have been paid or the real estate was not liable to the tax or assessment.’

This provision of the statute refers to judgments which the court had jurisdiction to render. Every judgment of a court rendered without jurisdiction is a nullity-not merely voidable but void-and may be disregarded. It is subject to attack by any person at any time in any court and in any proceeding in which it is brought in question. It is a fundamental principle and an essential clement of due process of law that no adjudication of a court is valid against the person or property of an individual without notice and an opportunity to be heard. A judgment without such notice and opportunity to be heard is not a judicial determination of the rights of the party against whom it is rendered and is not entitled to respect in any court. Smith v. Woolfolk, 115 U. S. 143, 5 S. Ct. 1177, 29 L. Ed. 357. The notice need not in all cases be personal or actual, and where the proceedings are substantially in rem or quasi in rem, as in the case of a proceeding to adjudicate the lien of taxes against land and procure an order for its satisfaction by the sale of the land, it is generally recognized that constructive or substituted service by publication, by mail or otherwise, is sufficient. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565;Tyler v. Judges of Court of Registration, 175 Mass. 71, 55 N. E. 812,51 L. R. A. 433. It is a well-established and universally recognized rule that when the judgment of a court of general jurisdiction, acting within the ordinary scope of that jurisdiction, is attacked collaterally, every presumption is made in favor not only of the proceedings but of the court's jurisdiction, unless it affirmatively appears on the face of the record that the court was without jurisdiction. Kenney v. Greer, 13 Ill. 432, 54 Am. Dec. 439;Clark v. Thompson, 47 Ill. 25, 95 Am. Dec. 457;Forrest v. Fey, 218 Ill. 165, 75 N. E. 789; 1 L. R. A. (N. S.) 740, 109 Am. St. Rep. 249;Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959. On the other hand, the jurisdiction of court of limited and inferior jurisdiction, not of record, must be affirmatively shown and no presumption exists in favor of jurisdiction. Kenney v. Greer, supra; Grignon's Lessee v. Astor, 2 How. 319, 340, 11 L. Ed. 283.

Counsel for the appellant contend that the doctrine in regard to courts of general jurisdiction which indulges every presumption in favor of their proceedings is applicableto the judgment of the county court in this...