Toman v. Park Castles Apartment Bldg. Corp.

• Decision Date: 05 February 1941
• Docket Number: No. 25644.,25644.
• Citation: 375 Ill. 293,31 N.E.2d 299
• Parties: TOMAN, County Collector, v. PARK CASTLES APARTMENT BLDG. CORPORATION et al.
• Court: Illinois Supreme Court

375 Ill. 293

31 N.E.2d 299

TOMAN, County Collector,

v.PARK CASTLES APARTMENT BLDG. CORPORATION et al.

No. 25644.

Supreme Court of Illinois.

Dec. 16, 1940.

Rehearing Denied Feb. 5, 1941.

Proceeding by John Toman, County Treasurer and ex officio County Collector of Cook County, Illinois, as successor to Joseph L. Gill, against the Park Castles Apartment Building Corporation, for the appointment of a receiver to collect rents and apply them to the unpaid taxes levied against the property of defendant, wherein the Metropolitan Life Insurance Company made a special and limited appearance. From a judgment of the Appellate Court for the First District, 303 Ill.App. 205, 24 N.E.2d 868, which reversed in part an order of the county court of Cook county and remanded the cause with directions, the County Collector appeals.

Judgment of the Appellate Court reversed and order of county court reversed in part, and remanded, with directions.Appeal from First Division of Appellate Court, First District, on Appeal from Cook County Court; Edmund K. Jarecki, Judge.

Thomas J. Courtney, State's Atty., of Chicago (Marshall V. Kearney, Jacob Shamberg, and Brendan Q. O'Brien, all of Chicago, of counsel), for appellant.

Marshall & Marshall, of Chicago (Maurice G. Shanberg, of Chicago, of counsel), for appellee Park Castles Apartment Bldg. Corporation.

Follansbee, Shorey & Schupp, of Chicago (Mitchell D. Follansbee and Frederic Barth, both of Chicago, of counsel), for Metropolitan Life Ins. Co., appellee and cross-appellant.

FARTHING, Justice.

This cause comes to this court by leave to appeal from a judgment of the Appellate Court for the First District which reversed, in part, an order of the county court of Cook county and remanded the cause, with directions. The common law record, only, is presented.

The Appellate Court denied the building corporation's motion to dismiss the appeal and cross-appeal, as not taken within the time prescribed by the Civil Practice act. The ruling is assigned for error. The original order was entered April 21, 1937. The additional transcript of record shows on that day: ‘Thereupon motion to vacate is hereby overruled.’ On May 18, 1937, appellant filed his motion to vacate the original order. On March 3, 1938, the record shows an order denying the motion of May ‘17’, 1937. On March 18, 1938, the court ‘for good cause shown’ granted a motion to vacate the order of March 3, and continued the motion to vacate the original order. After numerous continuances, the motion to vacate was denied on December 6, 1938. The notice of appeal was filed on December 23, 1938.

The argument is that the order of April 21, 1937, was never vacated, but stands as final; that the court had no jurisdiction, on March 18, 1938, to vacate the order of March 3, 1938; and the notice of appeal was not filed within the required time after the order of April 21, 1937. Prior to the adoption of the Civil Practice act, this court held that during the term at which a judgment or decree was entered the record remained in the breast of the court, and the court might, at any time during the term, amend it or set it aside of its own motion or for good cause shown, as justice and the right of the case might seem to require. Krieger v. Krieger, 221 Ill. 479, 77 N.E. 909; Donaldson v. Copeland, 201 Ill. 540, 66 N.E. 844;Shannahan v. Stevens, 139 Ill. 428, 28 N.E. 804. The Civil Practice act substitutes a period of thirty days for a term of court under the prior law. The motion of May 18, 1937, was filed less than thirty days after the entry of the original order. It does not appear who made the motion to vacate on April 21, 1937, and there is nothing in the record from which we can say that the order denying it was binding upon appellant or cross-appellant. The record was still in the breast of the court when appellant made his motion on May 18, 1937, to vacate, and the court had a right to entertain it. The order of March 18, 1938, was for good cause shown and upon a hearing, and obviously was made because of the erroneous date of May ‘17’, 1937, in the order of March 3, 1938. Strictly speaking, the order of March 3, 1938, did not overrule the motion of May 18, 1937, which was continued by the court from time to time until finally denied. The record shows the building corporation agreed to at least one of the continuances, and it is not shown that it ever suggested that the order of March 18, 1938, was void, before the cause reached the Appellate Court. If it had done so at the hearing, there was still time for appellant to perfect his appeal from the order of March 3, 1938. On the appeal to the Appellate Court the building corporation was not, and is not now, in a position to claim the motion and order of March 18, 1938, was too late. Moreover, under the Civil Practice act, when, as here, the court had no jurisdiction to enter the original order, it had power to vacate it after the thirty-day period. Thayer v. Village of Downers Grove, 369 Ill. 334, 16 N.E.2d 717. The claim that the revenue is involved, and that the appeal should have been directly to this court, is hereinafter considered.

The issues arise through a petition filed on December 3, 1935, in the county court of Cook county by Joseph L. Gill, then county treasurer and ex officio collector, alleging that a portion of the second installment of the 1932 taxes, and the taxes for 1933, on real estate belonging to Park Castles Apartment Building Corporation were delinquent for more than six months, and praying for his appointment as tax receiver of the premises for the collection of rents and the payment of such taxes.

The antecedent facts are important in the determination of the issues. Joseph B. McDonough was county treasurer and ex officio collector on and before June 23, 1933, and acted as such until his death. Thomas D. Nash was appointed his successor April 25, 1934. Robert M. Sweitzer was elected to the office and qualified December 11, 1934. Upon his removal, Joseph L. Gill was appointed on June 6, 1935. The order finds that each of them acted as tax receiver of the premises. Horace G. Lindheimer was elected and qualified on December 8, 1936. Lindheimer was the incumbent at the time the order of the county court was entered. Toman appealed as successor in office.

On July 23, 1933, Joseph B. McDonough, then collector, was appointed tax receiver of the premises by the county court. The appointment was made under the act of 1933, known as the Skarda act. On June 20, 1934, this court held the act did not confer jurisdiction upon county courts in such proceedings. McDonough v. Gage, 357 Ill. 466, 192 N.E. 417. Thereafter, Thomas D. Nash, who was then collector, was appointed tax receiver by the circuit court on July 3, 1934. On September 27, 1934, the collector reported to the county court that he had on hand $10,425.72, for the purpose of paying taxes on the premises. The cause was transferred from the county court to the circuit court on November 26, 1934. In 1935, the General Assembly amended section 253 of the Revenue Act (Laws of 1935 p. 1166, Smith-Hurd Stats. c. 120, § 697 note), whereby county courts were authorized to appoint a tax receiver in any application for judgment and order of sale of lands for delinquent taxes. Thereafter, the petition in this cause was filed in the county court.

The building corporation answered, setting up that the former collector had been appointed tax receiver of the premises by the circuit court of Cook county; that all taxes, except $1,661.48 of the 1932 taxes, had been paid and that the collector had on hand $2,199.02, which was enough to pay the 1932 unpaid balance. The answer concludes: ‘That this Honorable Court should inquire into the acts and doings of the county collector or its agents in not applying the monies in their hands toward the payment of delinquent taxes and permitting the penalties to accrue thereon.’

By leave of court, the Metropolitan Life Insurance Company, owner of a $500,000 note secured by trust deed on the premises, filed its special and limited appearance for the purpose of questioning the jurisdiction of the court to make any order directing the disposition of the rents of the premises. It alleged the assignment of the rents by the trust deed to secure the indebtedness, the institution of foreclosure proceedings in the superior court, an application for a receiver therein, and an order of the superior court entered on April 12, 1934, finding: That McDonough, county collector, was in charge of the premises as tax receiver; that the life insurance company intended to pay the balance of the delinquent taxes and to have the receiver discharged; that the building corporation desired to regain possession of the property and to furnish a performance bond, and to have all net rents used to reimburse the life insurance company for any delinquent or future taxes advanced by it. The order provided that as soon as the tax receiver surrendered possession of the premises, the building corporation should take charge of them and pay the net rent to the life insurance company; that all net rents in the hands of the tax receiver should be applied to the payment of any delinquent taxes and to reimburse the life insurance company for any such taxes...