Senichka v. Lowe

• Decision Date: 30 September 1874
• Citation: 74 Ill. 274,1874 WL 9122
• Parties: HARBARD SENICHKAv.HERVEY LOWE.
• Court: Illinois Supreme Court

74 Ill. 274

1874 WL 9122 (Ill.)

HARBARD SENICHKA

v.HERVEY LOWE.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This was an action of ejectment, by the appellant against the appellee, for the recovery of two lots in the city of Joliet, in Will county. The cause was tried by the court without a jury. The plaintiff claimed title under a sale of the lots in 1866 for the taxes of 1865. The court found for the defendant. Mr. THOMAS H. HUTCHINS, for the appellant.

Mr. GEORGE S. HOUSE, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The only evidence of the publication of the notice by the collector that he would apply for judgment for the delinquent taxes against the property in controversy, is what purports to be the certificate of the publisher of the paper, printed at the conclusion of the list of delinquent property, and as a continuation of the same advertisement. This appears only in the same number of the paper containing the advertisement, and there is no certificate made by the publisher since that publication was made. This was clearly insufficient to give the court jurisdiction in the case.

In Fortman et al. v. Ruggles et al. 58 Ill. 207, in speaking of the question of notice in a like case, it was said: “Such a notice is required by the statute, and it is indispensable to confer jurisdiction in this proceeding, unless an appearance is entered. It is statutory and summary in its character, and the requirements of the law must be strictly pursued. The notice takes the place of process, and it is only by its publication, as required by the statute, that the court obtains jurisdiction to hear and adjudicate upon the case.”

In Fox v. Turtle, 55 Ill. 378, the certificate of publication was signed ““John Wentworth, publisher, by Reed,” and it was held insufficient to sustain the judgment upon delinquent taxes.

It is contended, however, in the present case, appellee is concluded on this question, by the finding of the county court as recited in the judgment. If this be true, it is difficult to say why the appellant was not also concluded by a like finding in the case just referred to, for the judgment there pursued the statutory form prescribed by the 35th section of the act of February 12, 1853 (Gross' Stats. 1869, p. 605), reciting that due notice had been given. But the statute required that the collector should obtain a copy of the advertisement of the delinquent lands and lots, together with a certificate of the due...