Schertz v. People Ex Rel. Isaac Taylor
| Decision Date | 20 November 1882 |
| Parties | PETER SCHERTZv.THE PEOPLE ex rel. Isaac Taylor, Collector. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Peoria county; the Hon. JOHN C. YATES, Judge, presiding.
Mr. JOHN MUCKLE, for the appellant:
The judgment of confirmation of the assessments is conclusive if the court had authority to render it, and had jurisdiction of the appellant and of the subject matter, otherwise it decides nothing and concludes no one. Notwithstanding the finding in the record that proper notice had been given, appellant had the right to prove, by the record or otherwise, that proper notices, as required by law, had not, in fact, been given. Goudy et al. v. Hall, 30 Ill. 109; Gage v. Bailey, 102 Id. 14; Belleville Nail Co. v. People, 98 Id. 403; Barnett v. Wolf, 70 Id. 76; Webster v. Reid, 11 How. 437; Given v. McCarroll, 1 S. & M. 351; Baldwin v. Kimmel, 16 Abb. Pr. 353; Johnson v. Wright, 27 Ga. 555.
It devolved on the People to show that the tax which was sought to be collected had the sanction of law to support it. English v. People, 96 Ill. 569.
A judgment of the county court denying judgment against lots for special assessments, where the court had jurisdiction and the parties are all before it, if made on the merits is conclusive against the People on a second application for judgment. Graceland Cemetery Co. v. People, 92 Ill. 621; Belleville Nail Co. v. People, 98 Id. 403; Gage v. Bailey, 102 Id. 14; Baker v. Cleveland, 19 Mich. 230; Town of Lyons v. Cooledge, 89 Ill. 529. The prior judgment, on its face, appears to have been on the merits, and if the record could be controlled by evidence aliunde, the burden of proof was on the People to show that the judgment was not what it purports to be,--a judgment on the merits. Badger v. Titcomb, 15 Pick. 416; Webster v. Lee, 5 Mass. 334; Lord Bagot v. Williams,3 B. & C. 235; Agnew v. McElroy, 10 S. & M. 552; Johnson v. Smith, 15 East, 213; Whittemore v. Whittemore, 2 N. H. 26; Phillips v. Burch, 16 Johns. 136; Coleman's Appeal,62 Pa. St. 252; South Side R. R. Co. v. Daniel, 20 Gratt. 363.
Mr. JULIUS S. STARR, for the appellee:
The confirmation of a special assessment by a court having jurisdiction is res judicata as to the validity of the assessment, and conclusive as to all objections that might have been taken to the proceedings. Lehmer v. People, 80 Ill. 601; Andrews et al. v. People, 84 Id. 29; Beveridge v. Park Comrs. 100 Id. 75; People v. Brislin, 80 Id. 423.
In order for a judgment to be a bar to a subsequent application for a judgment, the court must have had jurisdiction, and there must have been a hearing upon the merits. There is no pretense here that in the former order refusing judgment, and referring the case back to the city collector, there was a hearing upon the merits.
An assessment, when once made a valid lien by judgment of confirmation, can only be discharged by payment of the sum assessed. People ex rel. v. Atchison, 95 Ill. 453.
The statute (sec. 153, art. 9, “Cities and Villages,”) makes it the duty of the collector, within such time as may be provided by ordinance, to make a report in writing, etc. Until such ordinance was passed the application was premature.
At the July term, 1882, of the county court of Peoria county, the People, on the relation of Isaac Taylor, county collector, made application for, and obtained judgment, and order of sale of certain city lots belonging to Peter Schertz, the appellant, for a special assessment, made under an ordinance of the city of Peoria, for the improvement of Adams street, on which said lots are situated, and Schertz brings this appeal to reverse said judgment and order of sale.
On the hearing of the application the appellant filed, among others, the following objections:
“1. The council of the city of Peoria passed no ordinance for the improvement of Adams street, from Hamilton street to the plank road.
2. The said court did not appoint any commissioners to assess the cost of said improvement of Adams street against the property benefited.
3. The judgment of said court, rendered August 25, 1880, confirming the report of commissioners Pinckney, Miller and Bestor, is void, because the court had not, prior thereto, appointed Pinckney, Miller and Bestor to assess the cost of the improvement of Adams street, from Hamilton street to the plank road; said court had no jurisdiction to enter said judgment; objector was not notified, as required by law, of the filing of said report and application for the confirmation of the same, and said judgment unlawfully and unjustly discriminated in favor of the Central City Horse Railroad Company, by allowing it to improve its own right of way in satisfaction of the amount assessed against it.
4. Said Central City Horse Railroad Company has not paid the amount assessed against it on account of said improvement, and no demand has been made on it for the same, and the same has not been returned delinquent, and no application has been made for judgment against it for its share of said assessment; and said city of Peoria has not, nor has said horse railroad company, improved or made any attempt to improve the right of way of said company, in the manner specified in the ordinance for the improvement of Adams street,...
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