The Town of Lyons v. Cooledge

• Decision Date: 30 September 1878
• Parties: THE TOWN OF LYONSv.EDWARD C. COOLEDGE et al.
• Court: Illinois Supreme Court

89 Ill. 529

1878 WL 10076 (Ill.)

THE TOWN OF LYONS

v.EDWARD C. COOLEDGE et al.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

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

This was a petition for mandamus, filed in the circuit court of Cook county, to compel the board of auditors of the town of Lyons to audit and certify the amount due on a certain judgment, recovered by appellees against the town, in the Superior Court, on the 7th day of July, 1870, for $6749 and costs of suit.

The answer to the petition admitted the recovery of said judgment; that petitioners applied to the board of auditors and furnished a statement of said judgment, and requested the board to audit the same as a town charge, and that the board refused to do so, on account of the unjust and fraudulent character of the claim, from facts within their own knowledge, and from evidence produced before them while sitting as such board of auditors; that such evidence proved to the satisfaction of said board, and the facts are, that said judgment was recovered by fraudulent collusion between said petitioners and Alfred Ward, supervisor of the town; that the claim of petitioners arose out of a contract made secretly and by fraudulent collusion between petitioners and the commissioners of highways of said town, for macadamizing a half mile of street, for $9000, being three times the actual cost or value of the work, and that said commissioners and Ward were interested, by collusion with petitioners, in the proceeds of said contract; that the commissioners of highways had no legal authority to make such contract; that they had appropriated and expended all the money they were authorized to raise, and that had been raised, or was at the disposal of said town, or of said commissioners, for road purposes in said town, during the term of office of said commissioners; that Ward paid, out of moneys of the town, the difference between the amount of said judgment and the contract price, and also paid $500 on the judgment to petitioners, through such fraudulent combination and collusion; that before commencement of suit on which said judgment was recovered, to-wit, in 1869, said claim of petitioners was included in the town charges reported by the town clerk to said supervisor, Ward, to be levied as a part of the town taxes for 1869, and the whole amount, to-wit, $9000, was returned to the board of supervisors of the county, by Ward, with other town taxes for 1869, and was included in the tax levy, and entered on the collector's book for that year; that the collector received his book, with the usual warrant, in December, 1869, and was proceeding to collect the taxes, when, in January, 1870, in the Superior Court, John Wentworth and other large tax-payers in said town filed a bill in chancery, praying for an injunction against the collection of said town tax, by reason of the fraudulent and illegal character of petitioners' claim, as aforesaid; that Ward, supervisor, and the collector, appeared in said suit by counsel, and answered the bill, and on final hearing, in April, 1870, an injunction was granted and made perpetual, in said cause, against the collection of said town tax, on account of the unjust, fraudulent and illegal claim of petitioners, included therein; that said suit at law was then commenced by petitioners against the town, and Ward, as supervisor, willfully, and by fraudulent collusion with plaintiffs, permitted said judgment to be entered by default, although he well knew that the claim was fraudulent and void against the town, and could not be enforced, in law or equity, if contested; that Ward has departed this life, and his estate is insolvent, and the town has no remedy for his default or neglect in not attending to the interests of the town in said suit, or for the wrongful payment of moneys by him to petitioners.

The replication to the answer averred, that after the rendition of said judgment, to-wit, in October, 1872, said town filed a bill in chancery, in said Superior Court, against petitioners, and therein claimed the several grievances, and especially the fraud, collusion and conspiracy set up in the foregoing answer, and prayed for an injunction against said judgment; that answer and replication were filed, and the cause heard, and bill dismissed for want of equity March 1, 1875. And no other proceedings were ever taken to set aside or reverse said judgment, and the same remains a proper town charge, and should be audited, etc.

The rejoinder to the replication averred, that in said action in said replication mentioned, it was found and adjudged by the court that the town had a remedy at law by prosecution of a writ of error from said judgment to the Supreme Court, upon the ground that said judgment was improperly rendered, without authority of law and before said town was in default, said town being entitled to thirty days to plead after service of summons, by statute, whereas its default was entered and judgment rendered on the thirteenth day after such service; and that said bill was dismissed only for the reason that said town had a remedy at law, by prosecution of such writ of error.

Defendants further averred, that all the records and files of court, in said cause, wherein said judgment was rendered, were destroyed by fire, Oct. 8 and 9, 1871, and had not been restored at the date of rendering the decree in said chancery suit; that immediately after the termination of said chancery suit, to-wit, April 20, 1875, the town filed its petition in said Superior Court, wherein petitioners were made defendants, to have the record of said judgment restored according to law; that summons was duly issued, and returned May 5, 1875, served on Moody and Leitch, Cooledge not found; that alias...