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Opinion of the Court.

assessed, and it is so assessed by the action of the circuit court dividing the gross assessment into eight annual instalments.

It is clear the object of all this legislation, from 1869 to June 16, 1871, was to provide a public park, and it was intended by the legislature to construct proper machinery for

such purpose.

True, the legislation to effectuate this intent must not contravene the constitution. To say this act of 1871 contravenes clause 13 of article 4, providing that no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title, is going very far. What was the subject of this legislation? A public park, and its then existing concomitants. Land for the park was to be acquired, contracts made therefor, bonds issued for the cost and expenses, assessments to pay existing and future liabilities—these were the concomitants which the legislature had in view in passing the act of 1871 with the title it bears, and we can not see that it is obnoxious to any objection.

This court has gone very far to uphold statutes supposed to have been within this objection. The case of O'Leary v. Cook County, 28 Ill. 534, is a conspicuous instance. The body of the act in question is germane to the title of the bill.

But the point is pressed, that this assessment is not on contiguous property.

This question, and all others bringing up the levy and assessment, have been passed upon by the circuit court, and are res adjudicata, and can not now be made in this court. Upon these, there is a judgment pronounced by a court of competent jurisdiction, and there they must rest.

The fact that the commissioners who made the estimate and assessments were property owners in the towns, could not disqualify them. They were made, by the law, the tribunal for the purpose, and were required to take an oath faithfully and impartially to discharge their duties for the public interest. We are of opinion they were not disqualified—the law appointing them qualified them. The objection made by appellee, that two judgments have

28–80TH ILL.

Opinion of the Court.


been rendered against the same lands in the same proceeding, is not clearly understood. In this case there was no judgment rendered for these assessments, and that is the cause of complaint here made by the party claiming the judgment. pellee has not assigned any cross-error, and we do not see how this objection can be made.

A further objection is made, that the county treasurer, as collector, had no power to act in this matter and to apply for judgment, as the county of Cook is not under township organization. Not being so, the sheriff of the county is, ex-officio, the collector, and the application for judgment should have been made by him.

That Cook county is under township organization, reference is made to clauses 6 and 7 of article 10 of the constitution.

By a fair implication from the language used in these sections, the county of Cook is not taken out of the class of coun. ties under township organization, that being the condition of the county before the adoption of the constitution; and this is strengthened by reference to section 23, ch. 34, title “ Counties.” So much of that section as is applicable, is as follows: “The powers of the county, as a body corporate or politic, shall be exercised by a county board, to-wit: In counties under township organization (except the county of Cook), by a board of supervisors, etc.; in the county of Cook, by a board of county commissioners, etc.; in counties not under township organization, by the board of county commissioners." P. 306, and also by clause 11, of article 11, of ch. 139, title “ Township Organization.” See, also, section 61 of act entitled “Counties," R. S. 1874, p. 313.

The supervisors of towns in Cook county shall perform the same duties as supervisors of towns in other counties under township organization, except that they shall not be members of the county board, or exercise any of the powers thereof. P. 1080.

We think it a fair inference, from all these provisions, the county of Cook must be considered as under township organi

Opinion of the Court.

zation, and, consequently, the treasurer of the county was the proper person to make this application for judgment.

After a careful examination of this record, and full consideration of the points raised upon it, we find no ground justifying the county court in refusing judgment on the application of the county treasurer for judgment. He had ample power by section 172 of the Revenue Law.

The judgment of the county court is reversed, and the cause remanded to that court with direction to enter judgment, notwithstanding the objections.

Judgment reversed.




1. PRACTICE—to require affidavit of merits from defendant. The statute does not require that the plaintiff shall file his own affidavit with his declaration, in order to require the defendant to file an affidavit of merits. The affidavit of any one cognizant of the facts, will be sufficient.

2. SAME-affidavit required when defendant is in default. Where a plea, without affidavit, is filed in a case where such affidavit is required, the plaintiff will be entitled to judgment by default; and if the defendant, on motion to strike his plea from the files, asks for leave to file an affidavit of merits with the plea, it is proper to require him to disclose, by affidavit, the nature of his defense, that the court may see whether it is meritorious or not.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. Gary, Judge, presiding.

Messrs. FULLER & Smith, for the appellant.

Messrs. JACKSON & SKINNER, for the appellee.

Per Curiam: This was an action, brought by appellee, in the Superior Court of Cook county, against appellant, upon a

Opinion of the Court.

check drawn by appellant on the Central National Bank of Chicago, payable to the order of David A. Gage, and by him indorsed to appellee.

An affidavit of the attorney of the plaintiff was filed with the declaration, which, in substance, states that the action is based upon, and is brought to recover, the amount of the check, and that there is due from the defendant to the plaintiff, after allowing all just credits, deductions and set-offs, $2700.

To the declaration, appellant filed his plea of the general issue, but no affidavit of merits. The plea, on motion, was stricken from the files, and judgment was entered upon the check for $2520.83, to reverse which this appeal was bronght.

It is, first, urged by appellant that, as the plaintiff did not file his own affidavit with his declaration, he was not required to file with his plea an affidavit of merits.

It is a sufficient answer to this position that the statute does not require the affidavit of the plaintiff himself to accompany the declaration. The language of the statute is, “If the plaintiff shall file with his declaration an affidavit.” If the legislature had intended to require the affidavit of the plaintiff, the word his no doubt would have been used; but independently of the words used in the act, we perceive no good reason why any person acting for the plaintiff, and who is cognizant of the facts, may not with as much propriety make the affidavit as the plaintiff himself.

The appellant, however, claims that if he ought to have filed an affidavit of merits with his plea, the court erred in not permitting it to be done on his motion.

When the plea was filed without an affidavit, the plaintiff was entitled to a default, and it was not improper for the court, after the plaintiff moved for a default, for the want of an affidavit to the plea, to require the defendant to disclose, by affidavit, the nature of his defense, in order that the court might see whether the defendant had a meritorious defense to the action or not.

The affidavit filed by appellant did not disclose a legal defense to the action, and the court properly permitted the


plea to be stricken from the files. Had the appellant desired a trial under the issue tendered by his plea, he ought to have filed an affidavit, as required by the statute, with his plea; but this he failed to do, and if he has been injured, it is through his own neglect.

But we fail to see wherein appellant has been injured. The eridence before the court was ample to authorize the judgment, and as no substantial error appears in the record, the judgment will be affirmed.

Judgment affirmed.

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1. JUSTICE OF THE PEACE amendment of summons. The statute authorizing justices of the peace, at any time before trial, to amend the summons and other papers in the case, so as to make them conform to the true names of the parties, does not require the justice to make a record showing a request so to do, and by whom made; nor does it require that the request shall be in writing, and preserved with the papers.

2. Where such a change is made as to the name of a party, by the justice, it will be presumed it was made before the trial and upon request, especially where a trial is had upon the merits, and the record fails to show any objection to the change.

3. APPEAL-practice when papers are sent to wrong court. Where a party to a judgment rendered by a justice of the peace of Cook county appeals to the Superior Court, and the appeal bond recites such fact, if the papers by mistake are filed in the circuit court and there docketed, this will not give the latter court jurisdiction, and a transfer of the papers by the clerk to the Superior Court, and its trial there, will not be erroneous. The more regular course is for the circuit court to strike the case from its docket.

4. SUPERIOR COURT of Cook COUNTYbranch held by a circuit judge. There is no objection to one of the circuit judges of the State holding a branch of the Superior Court of Cook county, and that more than three branches thereof are held at the same time.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH SIBLEY, Judge, presiding.

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