Stack v. Talbot

• Decision Date: 24 October 1905
• Citation: 75 N.E. 347,217 Ill. 220
• Parties: STACK v. PEOPLE et rel. TALBOT, County Treasurer.
• Court: Illinois Supreme Court

217 Ill. 220

75 N.E. 347

STACK

v.PEOPLE et rel. TALBOT, County Treasurer.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Livingston County Court; C. F. H. Carrithers, Judge.

Application by the people, on the relation of Will. L. Talbot, county treasurer, for a judgment of sale of a tract of land owned by J. J. Stack, as trustee of the estate of P. Stack, deceased, and returned delinquent for the nonpayment of special assessments. From a judgment of sale, defendant appeals. Affirmed.

Thomas W. Tipton, for appellant.

R. S. McIlduff, for appellee.

This is an application by the county treasurer and ex officio collector of Livingston county for a judgment of sale against the N. W. 1/4 of the N. W. 1/4 of section 28, town 26, range 8, in said county, owned by appellant as trustee of the estate of P. Stack, deceased, and returned delinquent for the nonpayment of special assessments. Objections were made by appellant to the entry of judgment, all of which were overruled. To the action of the court in overruling such objections an exception was taken. Judgment of sale was rendered against the land, to which also appellant excepted. The present appeal is prosecuted from such judgment of sale.

MAGRUDER, J. (after stating the facts).

Upon the trial before the county court of Livingston county the collector, petitioning for the sale of the land, offered in evidence the warrant, delinquent list, and accompanying affidavits, certificates, and papers, together with the certificate of publication of the tax list, and the certificate of the treasurer of the Oliver and Corn Grove drainage district that the land in question was delinquent for a special assessment. The appellant, objector below, offered in evidence all the proceedings for the levy of an additional special assessment by the commissioners of the Oliver and Corn Grove drainage district, together with the exhibits to said petition; also the order granting the prayer of said petition, and directing the commissioners of the district to make such additional assessment in lieu of a jury; also the oath of the commissioners and the assessment roll, the order made by the commissioners confirming the assessment roll, and the order of the court confirming said assessment roll, in connection with which were also offered the affidavits and certificates showing the posting, publication, and mailing of notices. Certain oral testimony was also introduced in evidence.

The special assessment proceeding here under consideration was prosecuted under the act of May 29, 1879 (Laws 1879, pp. 121, 126, 131). ‘to provide for the construction, reparation, and protection of drains, ditches and levees across the lands of others for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts.’ The sections of that act, under which the points made by the appellant arise, are chiefly sections 3, 19, and 37, as amended by the acts of 1881 and 1885. 2 Starr & C. Ann. St. 1896 (2d Ed.) pp. 1502, 1503, 1511, 1519, 1520. The record of the proceedings, introduced by the objector, showed that on January 7, 1903, a petition was filed in the county court of Livingston county by three persons, appointed by said court as commissioners of the Oliver and Corn Grove drainage district, asking the court to authorize an additional assessment to be made by them on the lands in said district, first, to clean out and repair the main ditch of said district where the same has filled in since first excavated, the cost of which was estimated at $4,430; and, second, to construct 4,800 feet of covered drain in the upper part of the main ditch with profiles thereto attached, the cost of which was estimated at $1,250, together with $1,100 for surveyor's pay, court expenses, attorney's fees, commissioners' fees, and treasurer's fees, amounting altogether to $6,780. The petition was accompanied by itemized statements of accounts, made by the commissioners under oath, showing the money received by the district and the manner in which they expended it on September 2, 1902, and from that date down to January 3, 1903. On January 31, 1903, an order was entered by the court, granting the prayer of the petition and ordering that an additional assessment of $5,680, being the amount above specified, after deducting $1,100 for costs and expenses, be made upon the lands of said drainage district, and ordering that three persons therein named, to wit, J. W. Walsh, J. R. Strawn, and M. A. Freehill, commissioners of said district, make such additional assessment in lieu of a jury, and further ordering that the itemized statements of account, filed by the said commissioners on September 2, 1902, and January 3, 1903, be approved. The proceedings, as introduced, showed the publication, posting, and mailing of a notice, stating the date of the filing of said petition, and its object, and the amount of the additional assessment required, and also stating ‘that at the January term, A. D. 1903, of the said county court, to wit, on the 31st day of January, A. D. 1903, at the hour of 1 o'clock p. m. of said day, application will be made to the said county court for said order, at which time all persons interested may appear and contest the said petition, if they desire.’

The record of the special assessment proceedings also showed the oath, taken by the commissioners of said district, to make the assessment of damages and benefits in favor of or against the lands in said district according to law. It also showed the assessment roll of the commissioners, from which it appeared that the sum of $308 was assessed against the above-described land of the appellant. Attached to the assessment roll was a certificate by the commissioners, certifying that they had fixed on the 21st day of February, 1903, at the hour of 1 o'clock in the afternoon, before said county court, in the courthouse in Pontiac, Livingston county, ‘as the time and place when and where we will meet and attend to hear and consider any and all objections that may be made to said assessment roll aforesaid, and for the correction of said assessment, if deemed advisable.’ On February 21, 1903, the commissioners returned to the county court their verdict and confirmation of said assessment roll, reciting therein that they had been appointed on January 31, 1903, by the county court to make and levy said assessment, and had made the same, and had filed their assessment roll with the clerk of said court on February 9, 1903, and had given notice of said filing as required by law, and had met on February 21, 1903, at the hour and place aforesaid, to hear objections, and further reciting that the court had found that due and proper notice had been given of said objections, and that they had heard the same, and the evidence offered, and had taken into consideration their own personal view of the land. On the same day, to wit, February 21, 1903, the county court entered a judgment, confirming said assessment roll and therein reciting that the commissioners had on that day come and made proof of the filing on February 9, 1903, of their assessment of damages and benefits to the various tracts of land in said drainage district by reason of the additional assessment theretofore ordered on January 31, 1903, and made proof of the posting, publishing, and mailing of notices according to law of the time and place of meeting for the correction of said assessment; and by said judgment of confirmation it was recited as follows: ‘And the court, being fully advised in the premises, doth find that due and proper notice has been given to all persons interested for the length of time and in the manner required by law of these proceedings and this application, and doth consider and order that the objections to the same be, and they are hereby, overruled, and that the said assessment roll, and each and every entry thereon, and the proceedings of the said commissioners, be, and they are in all respects hereby, confirmed and approved by the court, and spread upon the records of this court,’ etc.

Accompanying the proceedings in regard to the levy of the additional assessment, as introduced by the objector, is a notice by the commissioners that they had been appointed to make said additional assessment, that the assessment roll had been prepared and deposited in the office of the clerk of said county in Pontiac, and that the court had appointed February 21, 1903, at the hour of 1 o'clock in the afternoonof said day at the county court room in the courthouse in Pontiac ‘as the time and place where we shall meet for the correction of said assessment, at which time and place we will meet, and any and all objections that may be presented to said assessment will be heard.’ There was also introduced in evidence in connection with said notice the certificates and affidavits, showing the posting, publication, and mailing of said notice.

This is an appeal, as will appear from the foregoing statements, from a judgment of sale of appellant's property made upon the application of the county collector. Accordingly, the proceeding is collateral to the original proceeding, in which judgment confirming the special assessment was entered. The only objections now urged upon our attention by the appellant are to the effect that the county court had no jurisdiction to grant the prayer of the petition of the commissioners of the district for an additional assessment, and no jurisdiction to confirm the assessment roll when made. These objections are to be considered in the light of the fact that they are made in a collateral attack upon the judgment of confirmation, and are not made in a direct proceeding for the reversal of that judgment.

First. It is said that the county court acquired no jurisdiction to grant the prayer of the petition, upon the alleged ground that the notice was not given 10 days prior to the first day of the term of the court, at which the order...