Wilson v. Mckenna

• Decision Date: 30 September 1869
• Citation: 1869 WL 5382,52 Ill. 43
• Parties: FREDERICK R. WILSON et al.v.MARGARET MCKENNA.
• Court: Illinois Supreme Court

52 Ill. 43

1869 WL 5382 (Ill.)

FREDERICK R. WILSON et al.

v.MARGARET MCKENNA.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Recorder's Court of the city of Chicago; the Hon. WILLIAM K. MCALLISTER, Judge, presiding.

The opinion states the case.

Messrs. JONES & GARDNER, for the appellants.

Mr. ARTHUR W. WINDETT, for the appellee.

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

This was an action of ejectment in the recorder's court of the city of Chicago, brought by Margaret McKenna against Frederick R. Wilson and others, to recover the possession of lot 3, in the north part of the southeast quarter of section 20, in township 39, south range 14 east, in the city of Chicago.

There was a verdict and judgment for the plaintiff, to reverse which the defendant appeals to this court, and makes several points, which we will notice.

The first point is, that the recorder's court should have transferred the cause on the affidavit filed by the defendant, and on his motion.

The statute under which the motion was made, provides that in all cases where any suit, either in law or in chancery, shall be commenced in the recorder's court, and the amount in controversy shall exceed one hundred dollars, and the defendant shall, at any time before the trial, file in the court a written request to have such suit transferred, either to the circuit court of Cook county, or to the Cook county court of common pleas, all further proceedings in the recorder's court shall thereupon cease, and the suit shall be transferred, agreeable to the request, and in the manner required by law in cases of change of venue.

It is insisted by the appellee that the act does not apply to this case, as the amount in controversy, to be determined by the damages claimed in the declaration, did not amount to one hundred dollars. The title, not the value of the property was in question. The declaration laying the damages determines, in such case, the amount in controversy.

To remove a cause to a court of the United States, the value in controversy determines the right to a removal. By this act of the legislature, it is the amount in controversy, the specific sum, whether claimed as debt or damages. There was no error in refusing to transfer the cause. The amount in controversy was not shown to exceed one hundred dollars.

The second point made by appellant is, the court refused to allow the question to be asked appellee, who was sworn as a witness, what was the consideration for the deed.

Appellant insists the question was a proper one, on which to base an objection to the deed for want of a proper stamp. We can not perceive the affinity between the question and the proposed objection to be made. The objection would be available, if at all, no matter what the consideration may have been; but it could not be made available under repeated decisions of this court, this court holding that an instrument made evidence by our State laws in the courts of the State can not be invalidated for such purpose by an act of Congress. The party omitting the stamp, with a view to deprive the government of the tax, is amenable to a penalty, but the instrument is not invalid in our own courts. That the act, in this regard, was intended to apply only to the courts of the United States was held in Latham v. Smith, 45 Ill. 25; Craig v. Dimock et al. 47 ib. 308; U. S. Express Co. v. Haines, 48 ib. 248.

The third point is, that plaintiff intermarried after suit was brought, and the title of the suit was not changed, but proceeded in her name as a feme sole. Appellant asks, after her marriage could a judgment be rendered in her favor by her original name? The answer to the question would undoubtedly be, it could, unless a change of name was brought to the notice of the court in some way, which does not appear to have been done in this case.

Another point made is, that the court ruled out the notices and affidavits presented by appellee in support of his tax deed. On this the case depends.

The constitution of the State, as well as the revenue laws, requires, before the purchaser at a tax sale shall receive a deed, he shall serve, or cause to be served, a written notice on every person in possession of the land or lot sold, three months before the expiration of the time of redemption, in which notice he shall state when he purchased, the description of the land or lot, and when the time of redemption will expire, and in like manner he shall serve on the person in whose name the land or lot is taxed, a similar written notice--if such person resides in the county where the land or lot is situate-- and such purchaser is required, before he is entitled to a deed, to make an affidavit of having complied with the conditions of this section, stating the facts particularly relied on as such compliance, which...