Smyth v. Neff

• Decision Date: 20 January 1888
• Citation: 123 Ill. 310,17 N.E. 702
• Parties: SMYTH v. NEFF.
• Court: Illinois Supreme Court

123 Ill. 310

17 N.E. 702

SMYTH

v.NEFF.

Supreme Court of Illinois.

January 20, 1888.

Appeal from circuit court, Alexander county; D. J. BAKER, Judge.

Ejectment brought by Peter Neff against Robert Smyth to recover certain city lots which plaintiff claimed under a tax deed dated June 18, 1881, founded upon a tax sale made June 17, 1879, under a tax judgment rendered May 28, 1879, for taxes for the year 1878 and prior years. Judgment for defendant, and plaintiff appealed, when the judgment was reversed, and the cause remanded. On the second trial, plaintiff obtained judgment, and defendant now appeals. For opinion of former appeal, see Neff v. Smyth, 111 Ill. 100.

MULKEY, J., dissenting.

Lansden & Leek, for appellant.

Green & Gilbert, for appellee.

SCOTT, J.

This case was before this court at a former term, and is reported as Neff v. Smyth, 111 Ill. 100. A sufficient statement of the facts appears in the opinion of the court then delivered, and no restatement is now necessary. It appears from the bill of exceptions in this case the evidence in the present record is precisely the same as in the former record except in two particulars: (1) There is now some parol testimony concerning the service of the notice as to the expiration of the time of redemption of the lots from the tax sale not contained in the former record; and (2) there was introduced on the trial a mortgage made by defendant, Smyth, to Michael Hoar on one of the lots involved, that was not contained in the record when the case was before this court on the former hearing. Upon all other questions in the case the evidence is exactly the same, and as to them the former decision is conclusive. Concerning the points considered by the court in its former opinion, the discussion must now be regarded as forever closed; and the decision, adverse to defendant, must stand. All those matters are now res judicata, and this court has neither rightful authority nor any inclination to reconsider them. The rule on this subject is so well settled that it is not necessary to do more than to cite a few of the cases in this court where it is declared: Rising v. Carr, 70 Ill. 596;Newberry v. Blatchford, 106 Ill. 584.

The additional parol testimony found in the present record, as to the service of the notice on defendant as to the time of redemption, is a matter of no consequence. It does not change the case in the slightest degree in that respect from what it was in the former record. Precisely the same error, if any, existed in the affidavit itself, and in the proof of service of notice in the former record, as now insisted upon. It does not appear from the opinion of the court that any objection was then taken either to the sufficiency of the affidavit made to procure the deed, or to the proof of service of notice. The objection now urged goes to the validity of the deed; and, if the same points were raised by the former argument of the case, they must have been decided adversely to defendant, for the court was of opinion the ‘objections made against the tax deed were not sufficient to invalidate it, and that it should have been held good.’ So, in either event, whether objections were taken to the sufficiency of the affidavit made to procure the deed, or as to the proof of service of notice of redemption, such objections cannot now be entertained. To permit that to be done would simply be to reconsider the case upon exactly the same record. This is not allowable under any practice that has ever attained in this state. Should the errors now alleged to exist be held to be well assigned, it would place this court in the absurd position of holding the tax deed good at one term of court, and at a succeeding term holding it bad, upon the same identical record. This court will not even enter upon the consideration of a case where such results might follow. In all such cases the rule stare decisis should be observed. It is not necessary to look elsewhere than to decisions of this court for authorities declaring this doctrine. In Newberry v. Blatchford, 106 Ill. 584, it was ruled that the decision of a court of last resort, having jurisdiction of the parties and the subject-matter of the litigation, definitive in its character, comprehending the whole merits of the controversy, under the known rule of law, is obligatory upon and conclusive as to the same parties everywhere,-in this court as well as in all other courts. This case follows closely other cases in this court, so that the doctrine is now as well settled as is any branch of the law. Hollowbush v. McConnel, 12 Ill. 203;Reed v. West, 70 Ill. 479;Smith v. Brittenham, 94 Ill. 624;Rising v. Carr, 70 Ill. 596. The case of Ogden v. Larrabee, 70 Ill. 510, is an authority exactly in point. On the second appeal in that case, the alleged error complained of was admitted to have existed in the first record brought up; but the attention of this court was not called to it, and it was contended it might be considered on the second appeal because the court had expressed no opinion in regard to it. But the position taken was not sustained, and it was said to consider the suggestion of error on the second appeal would introduce a pernicious practice not heretofoer adopted in this state. The rule has its foundation in reason and the policy of the law that there must be an end of litigation somewhere, and there would be none if parties were at liberty, after a case had received a final determination of a court of last resort, to litigate the same matter anew, and bring it again and again before the court for decision. Another rule, equally well settled, is that a second appeal, where the first decision covers the merits of the controversy in all its bearings, brings up only the subsequent proceedings had after the mandate of the court of last resort was sent down. This doctrine is fully declared in the cases ut supra. It is seen, the former decision in this case covered the whole merits of the controversy; for it declared the tax deed should ‘have been held good;’ and that, of course, would be conclusive as to the rights of the litigants as the case was then presented.

The only thing that occurred after the mandate from this court was sent down at all affecting the merits of the controversy was the introduction of the mortgage made by defendant to Michael Hoar, which embraced one of the lots involved; and the effect of that evidence alone remains to be considered. The mortgage was made on the 27th day of June, 1874, to secure a note for $750, due in 12 months, with interest at the rate of 10 per cent. per annum. It was entered satisfied on the record by the mortgagee on the 23d day of April, 1881. That was after the service of the notices as to the expiration of the time for redemption, but before the time for redemption did in fact expire. The question made, is that notice as to the expiration of the time of redemption should have been given to the mortgagee, as well as to the owner. There is no pretense that the mortgagee was served with notice by the purchaser at the tax sale, either by himself or by his agent, and it is said the omission to give such notice is fatal to the validity of the tax deed. It will be seen at once the question made is important, and one of much seeming difficulty. Section 5, art 9, Const. 1870, declares: ‘The right of redemption from all sales of real estate for the non-payment of taxes * * * shall exist in favor of the owners and persons interested in such real estate for a period of not less than two years from such sales thereof.’ It is...