The City of Chicago v. Sansum

• Decision Date: 30 September 1877
• Citation: 87 Ill. 182,1877 WL 9833
• Parties: THE CITY OF CHICAGOv.O. B. SANSUM.
• Court: Illinois Supreme Court

87 Ill. 182

1877 WL 9833 (Ill.)

THE CITY OF CHICAGO

v.O. B. SANSUM.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. R. S. TUTHILL, and Mr. J. J. LALER, for the appellant.

Mr. ADOLPH MOSES, for the appellee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is an appeal from a judgment of the court below awarding a peremptory mandamus for the payment of a judgment held by appellee, by assignment from one Peter Marr, against appellant. Several preliminary objections are taken to the jurisdiction of the court below, but they may be disposed of with very few remarks.

The duty here sought to be enforced rests upon appellant as a corporate body, and there is, therefore, no impropriety in directing the writ to it. Dillon on Municipal Corporations, sec. 701; Village of Glencoe v. The People, 78 Ill. 382.

No objection appears to have been urged in the court below on account of a want of a previous demand, and it is, therefore, too late to urge the objection now, even if we were to concede its materiality.

“The objection,” says Tapping, in his work on Mandamus, “as to the neglect of a demand, or the absence of a refusal, should, in order to prevent a waste of time, be objected to in the first instance, viz: on showing cause against the rule for the writ, and can not be made after the merits of the case have been discussed.” See, also, High on Extraordinary Remedies, sec. 515.

The only controversy, on the trial below, seems to have been, whether the judgment sought to be enforced had been paid.

The substance of the defense set up in appellant's answer is, in brief, that Bush & Hagan filed a creditors' bill in the Superior Court of Cook county, against Peter Marr, the plaintiff in the judgment, and appellant, to which Peter Marr and appellant appeared and made answer, and decree was rendered in the cause January 4, 1875, wherein it was found that Peter Marr had given Bush & Hagan an order on the comptroller of the city for $800, which he subsequently countermanded; that he was indebted to Bush & Hagan to the amount of $801.15; that there was due from appellant to Peter Marr more than that amount; and it was decreed that appellant should pay Bush & Hagan $801.15, which, being done, should operate as a discharge of so much of the debt due from Peter Marr to appellant; and, also, that Moulding & Harlan, having received from Peter Marr an order on the comptroller of the city for $1310.75, which was not paid on presentation, filed their creditors' bill, in the Superior Court of Cook county, on the 29th of May, 1874, against Peter Marr and appellant, to which appellant appeared, as did also Peter Marr, by the present appellee, as his attorney; and decree in that case was rendered on the 7th of September, 1874, in favor of Moulding & Harlan, finding that Marr owed them $1310.75; and it was decreed that the same be considered equitable assets in the hands of the city, by virtue of the equitable...