Phillips v. People ex rel. Goedtner

• Decision Date: 20 December 1905
• Citation: 75 N.E. 1016,218 Ill. 450
• Parties: PHILLIPS et al. v. PEOPLE ex rel. GOEDTNER, County Treasurer.
• Court: Illinois Supreme Court

218 Ill. 450

75 N.E. 1016

PHILLIPS et al.

v.PEOPLE ex rel. GOEDTNER, County Treasurer.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from La Salle County Court; W. H. Hinebaugh, Judge.

Application by the people, on the relation of John Goedtner, county treasurer, for judgment and order of sale against the lands of John E. Phillips and others. From a judgment granting the application, defendants appeal. Reversed.

Arthur H. Shay, for appellants.

Reeves & Boys and Lloyd Painter (P. J. Lucey, of counsel), for appellee.

CARTWRIGHT, C. J.

The county collector of La Salle county applied to the county court of said county for a judgment against the lots of appellants and an order of sale for the first installment of a special assessment for paving East Main street, in Streator. Appellants filed objections in writing to the application, but the court, on motion of the collector, struck the objections from the files. Judgment was thereupon entered against the lots and they were ordered sold to pay said assessment, and from that judgment this appeal was taken.

The objections stricken from the files were five in number. The first one was that the ordinance under which the assessment was levied was void because it was adopted without a petition of the owners of one-half the property abutting on the line of the proposed improvement, as required by law in cities of the population of Streator. The jurisdiction of the county court to confirm the assessment did not depend upon the existence of such petition, and, as the judgment could not be collaterally attacked except for want of jurisdiction, the objection could not be interposed in the proceeding to collect the assessment. Pipher v. People, 183 Ill. 436, 56 N. E. 84;Leitch v. People, 183 Ill. 569, 56 N. E. 127;Perisho v. People, 185 Ill. 334, 56 N. E. 1134;Conlin v. People, 190 Ill. 400, 60 N. E. 55;Sumner v. Village of Milford, 214 Ill. 388, 73 N. E. 742. The court did not err in striking that objection from the files.

The second objection was that the judgment of confirmation of the assessment sought to be collected was void because no notice of the application for such judgment was mailed to or received by the objectors, or any of them. It alleged that said objectors were, and for three years prior to the proceeding for confirmation had been, and have continued to be, the owners, respectively, of the property for which they objected, and during all that time had been in possession and resided thereon and paid the taxes on the same. That was a valid objection. The statute requires that a notice shall be sent by mail, postpaid, to each of the persons paying the taxes on the respective parcels of property on the assessment roll for the last preceding year during which taxes were paid, and if such notices were not mailed the county court did not acquire jurisdiction to enter the judgment of confirmation. If the fact was as alleged and the want of jurisdiction appeared upon the face of the record of the proceeding to confirm the assessment, appellants had a right to make proof of the fact. The answer of counsel to the assignment of error that the court struck the objection from the files is that the record of the proceeding for confirmation is not contained in the record in this case, and that therefore it will be presumed that the court, in confirming the assessment, proceeded regularly and had jurisdiction, and that all notices required by law were given. What would have been proved by the...