« AnteriorContinuar »
The fifth objection is that the report of the treasurer is not sworn to. We have held in the case of Chicago & Northwestern Railway Co. v. People, 174 III. 80, 50 N. E. 1057, that the affidavit required is not jurisdictional and that the defaulting taxpayer is not interested in the affidavit; that he may show that the tax has in fact been paid, but if he shall not do so, it does not concern him that the proper authorities have acted upon less or different evidence in that respect than might have been required. The amended affidavit offered by the appellant also cured this defect, and the court committed error in refusing to permit it to be made.
The appellee Jeff Cline also objects that certain of his lands were not in the district. The record shows that a stipulation was entered into by the parties to the effect that the lands of the objectors returned delinquent and on which this drainage tax was sought to be collected were taken into the drainage district in January, 1905, and were classified and assessed by the drainage commissioners, and that the assessment was due March 1, 1905.
From an examination of all of these objections we are convinced that they should have been overruled. It is nowhere claimed that the tax was not properly levied by the proper parties or that it had been paid, and no reason was assigned why it should not be paid. There is no objection to the substantial justice of the tax, and under the many decisions of this court appellees' objections should not have prevailed. St. Louis, Rock Island & Chicago Railway Co. v. People, 147 Ill. 9, 35 N. E. 228; Buck v. People, 78 Ill. 560. Section 191, c. 120 (Hurd's Rev. St. 1903, p. 1541), provides that any error or informality in the proceedings of any of the officers connected with the assessment, levy. ing or collecting of the taxes not affecting the substantial justice of the tax itself shall not vitiate or in any manner affect the tax or the assessment thereof, and any irregularity or informality in the assessment roll or tax list, or in any proceeding connected with the assessment or levy of such tax, or any omission or defective act of any of ficer connected with the assessment or levy of such tax, may, in the discretion of the court, be corrected, supplied, and made to conform to the law by the court or by the person from whose neglect or default the same was occasioned. If these objections were specifically made in the court below and insisted upon, the corrections could have been permitted under the above section and the objections overruled.
The county court committed reversible error in its rulings, and its judgment must be reversed. The cause will be remanded, with directions to the county court to overrule each of said objections, and enter a judgment and order of sale in conformity with the views herein expressed.
Reversed and remanded.
(219 III. 99) MARSHALL V. PEOPLE ex rel. SMITH,
County Treasurer. (Supreme Court of Illinois. Dec. 20, 1903.) 1. MUNICIPAL CORPORATIONS -- LOCAL IMPROVEMENTS - SPECIAL ASSESSMENT - DEMAND FOR PAYMENT.
Where a special tax warrant is issued against the property of a nonresident owner, demand for payment thereof need not be made personally, but it may be made by registered letter, 2. SAME — APPEARANCE-EFFECT-WAIVER OF IRREGULARITY.
Where a property owner appears and objects to the entry of judgment for special assessment against his property, defects of description in the delinquent list and in the publication and certificate were waived. 3. SAME - LOCAL IMPROVEMENTS – IMPBOVEMENT BY PROPERTY OWNER-NOTICE.
Under the sidewalk act of 1875 (Laws 1875, p. 63), the publication of an ordinance, in accordance with the statute requiring the property owner to build a sidewalk within 30 days from such publication, is sufficient notice to the property owner to build the sidewalk, in the absence of a further requirement of the ordinance that some other notice be given. 4. SAME-DEMAND OF PAYMENT-SUFFICIENCY OF WARRANT.
While a special tax warrant for the improvement of a sidewalk, authorizing the street commissioner to make the amount therein called for from the chattels of the property owner, is thus far void, it is sufficient authority to enable the street commissioner to make a valid demand of payment. 5. SAME-CHARACTER OF IMPROVEMENT-DisCRETION OF AUTHORITIES.
A broad discretion is confided to city authorities in the matter of sidewalk improvements, and the burden is upon one complaining of their action to show that the improvement ordinance is unreasonable. 6. SAME-REPORT OF DELINQUENCY-NECESSITY OF SEAL.
Under Laws 1875, p. 64, § 4, providing that upon the failure to collect a special tax it shall be the duty of the clerk to make report of the tax to such general officer of the county as may be authorized to apply for judgment against and sell land for taxes, the clerk's report of delinquency of a special sidewalk tax need not be under the seal of the city. 7. SAME - COMPLETION OF IMPROVEMENT CONFORMITY TO ORDINANCE
The fact that a city sidewalk is two or three inches shorter than that called for by the ordinance under which it is constructed, and that some witnesses think the stone used in the walk is too soft, does not make the improvement a different one from that called for by the ordinance.
Appeal from Marion County Court; Charles H. Holt, Judge.
Application by the people, on relation of Samuel J. Smith, county treasurer, for a judgment and order of sale against the lands of W. Scott Marshall. From a judgment granting the application, defendant appeals. Affirmed.
T. E. Merritt, for appellant. J. C. Smith, C. F. Dew, and J. J. Bundy, for appellee.
RICKS, J. The county court of Marion county rendered a judgment and order for sale against the real estate of appellant in the city of Centralia for the cost of the construc
tion of a limestone sidewalk along his lot, and, On January 5, 1905, the city clerk certified the this appeal is from that judgment. The walk property as delinquent to appellee, as county was built by the city pursuant to an ordinance treasurer and ex officio collector of said counpassed July 19, 1904, under the sidewalk act ty, who advertised the same as delinquent of 1875. The property was located in the and made application for judgment at the business district of Centralia, and the ordi June term of said court. Appellant appeared nance provided for a natural stone sidewalk at that term, by his counsel, at the time fixed of the width of 10 feet on Locust street, upon for application for judgment and filed 11 the west line of appellant's lot, to begin at objections (several of which were of a general the south line and to run thence north and character and went to the merits), which were about on the west line of said lot, a distance overruled and judgment and order of sale enof 40 feet. The ordinance required that three tered. Appellant excepted and moved to trenches should be dug, one on each side and vacate or set aside the judgment and for a one in the center of the sidewalk line, 38 inch new trial, which was also overruled. es below the sidewalk grade line, and that Counsel for the appellant devotes a large there should be laid in each of these a brick portion of his argument to the objections urged supporting wall 9 inches wide and 34 inches against the delinquent list and the publication deep, and directed that the stone should be 10 and certificate thereof, and endeavors to point feet long and not to exceed 5 feet wide, of out that the property is not properly described good, hard quality of limestone, free from and that it is in many other respects insuffisoft and shaly spots. In May, before the cient. It is unnecessary to enter into a conpassage of the ordinance, appellant was sery sideration of these objections, as the appeled with a written notice to build a walk such lant appeared and objected to the judgment as was afterwards described in the ordinance, and had all the benefit aud advantage that but did not do so. The ordinance was passed a good notice could have given him, and in and published, and the city authorities wait such case it is immaterial whether the notice ed about 40 days after the publication of the be good or bad and complies with the law or ordinance, and, no walk having been built by not. Mix v. People, 106 Ill. 425. appellant, the city authorities built one. The It is next urged that appellant was entitled cost of the walk was $119.55. At the time to be served with a notice to construct the the ordinance was passed there was a 5-foot | walk after the passage of the ordinance, and flagstone sidewalk along the line of the that as the notice was served upon him beproposed new walk. The ordinance required fore the passage of the ordinance he was that the walk be built within 30 days from the never in default. The statute does not republication thereof, and that, if the owner quire that a city shall give to the property did not so construct it, it should be built by owner a notice to build a sidewalk where an the city under the supervision of the street ordinance is passed, such as the one before us, commissioner and to be approved by the for the construction thereof. The publication street commissioner and the committee on of the ordinance is all the notice to which streets and alleys, and that the cost of the the property holder is entitled. By its publiwalk should be charged against the abutting cation it becomes a law of the municipality, property. The walk was built in acordance and the owners of property affected are bound with the ordinance and approved and accept to take notice of it and act accordingly. This ed by the street commissioner and the com is true, unless the ordinance itself under mittee on streets and alleys, and an itemized which the walk is constructed provides that a account of the cost of the same was made notice shall be given, in which event it is and filed with the city clerk by the street com necessary that the city show that the notice missioner within 30 days thereafter. The required by the ordinance has been given. city clerk then issued to the street commission Hoover v. People, 171 Ill. 182, 49 N. E. 367; er, as directed by the ordinance, a warrant Hintze v. City of Elgin, 186 Ill. 251, 57 N. for the collection of the tax.
E. 856. The ordinance in question did not Appellant did not reside in Centralia, but in contain a provision for giving notice to the Chicago, and demand was made upon him by property owner, but followed the statute and sending a copy of the warrant in a registered required the property owner to build the letter, his receipt therefor being returned to sidewalk within 30 days from the publication the commissioner. It is urged that this de of the ordinance, and no other or further mand was not sufficient, but should have been notice was required. a personal one. We do not agree to this con It is also claimed that the warrant for the tention. It is sufficient that it be shown, and collection of the tax was void because it auin a proper manner, that a demand was made thorized the street commissioner, as collector, and that the property owner either failed or to make the amount therein called for from refused to pay. The law does not require the goods and chattels of appellant. So much that an officer go from Centralia to Chicago of the warrant as attempted to make it an to serve such a demand. Appellant did not | execution was void. Craw v. Village of Tolopay the same, and on the 2d of January, 1905, no, 96 Ill. 255, 36 Am. Rep. 143. But the the street commissioner returned the warrant, street commissioner did no act under it that stating the manner in which the demand was would raise that question, as he only made demade, and that no part of it had been paid. mand, and it was sufficient authority to him
to make the demand even though it ran as , tenths of a foot in the length of the walk, an execution.
when the space for a walk was all occupied The claim that the ordinance is void be with one, would seem to be a trivial matter cause unreasonable and oppressive is not sus and the objection highly technical-50 much tained by the evidence. The location was in so that the law would not take notice of it. the business district of the city, and the other Concerning the character of the stone, the walks about it were of the width of 10 feet, witnesses agree that it is limestone, but and were so required by the extent of the use differ as to whether it is hard or soft. Some of them. This is not denied by appellant, testify that it is soft, and some hard, and but it is urged that, as there was 5 feet of others testify that it is soft when first put good stone walk there, the city should only down but hardens by exposure. All testify have required an additional 5 feet in width that it is of the same character of stone as to be built. It will be observed that the walk that usually used in that city for walk purso ordered was a 10-foot walk, and it was poses. The objection that the improvement required that the stones, which should lie is not the improvement called for by the ordi. crosswise on the walk, should each be 10 nance is not sustained by showing a slight feet in length and not to exceed 5 feet in variance in quality of material from that width. This would make a much smoother called for by the ordinance, and particularly and better walk than a walk with a seam or So where the city authorities charged with opening in the center and a seam formed by that duty have approved and accepted the the cross layers of stone. In a matter of an improvement or the material that enters into improvement such as this a broad discretion it. The fact that the stone was softer than must be confided to the city authorities, and some witnesses thought it ought to be would the burden is upon the one complaining to not characterize the walk as one different show that the ordinance is unreasonable, and from that called for by the ordinance, when we are unable to see that such is the case, as it is admitted and shown that in a general shown by this record.
way the material called for was used, and It is claimed that the report of delinquency used in the manner directed. made by the city clerk to appellee is insuffi. The judgment of the county court is af. cient because there is not attached thereto, firmed. under the signature of the city clerk, the sea) Judgment affirmed. of the city. The language of the statute with reference to this report is as follows: “Upon the failure to collect such special tax
(219 Ill. 9) as heretofore provided in this act, it shall be LIVINGSTON COUNTY BUILDING & the duty of said clerk, within such time as LOAN ASS'N V. KEACH et al. said ordinance may provide, to make report (Supreme Court of Illinois. Dec. 20, 1905.) of all such special tax, in writing, to such 1. BOUNDARIES – ESTABLISIIMENT - BILL IN general officer of the county as may be au. EQUITY. thorized by law to apply for judgment against
Where plaintiff is deprived of the full
width of his lot as the result of a boundary and sell lands for taxes," etc. Laws 1875,
line dispute between the owners of lots on each p. 64, § 4. From the reading of the above side of his property, he may bring ejectment statute it is seen that the report is not re against the one of such owners who is enquired to be under the seal of the city, but
croaching on his property, but cannot file a
bill in equity to have the court fix the boundary that the only requirement is that it shall be
line and determine which of the abutting own. in writing. We regard it as sufficient.
ers is in error in relation thereto. It is urged, lastly, that the walk as con 2. EQUITY-JURISDICTION. structed is not the kind of walk called for by
The equitable jurisdiction of the court
can be invoked only where there is no adequate the ordinance. The evidence shows that the
remedy at law and there is necessity for the walk was built in the general manner pro interposition of equity to prevent unnecessary vided for in the ordinance, with the brick and annoying suits. walls for support of the stone, and that the! [Ed. Note.-For cases in point, see vol. 19, stone used was Bedford limestone four inches
Cent. Dig. Equity, $8 121-140, 167–171.j thick and of the dimensions required by the
3. QUIETING TITLE-WHEN ACTION LIES.
An owner of a lot cannot maintain a bill ordinance. The particular points urged are
against two adjoining owners, one or the other that after the walk was completed it showed of whom has encroached upon his land, to quiet that by actual measurement there were only title, where the bill alleges that complainant's 398/10 feet of the walk longitudinally, and
title to a strip of land of certain width be
tween their lots is admitted, but the only con. that the ordinance called for a 40-foot walk;
troversy is as to its true boundaries. and, further, that the stone that was used was not hard limestone, as called for by the Error to Circuit, Court, Livingston County; ordinance, but appellant urges that the lime. G. W. Patton, Judge. stone used was soft. The record shows Bill by the Livingston County Building & that the lot adjoining that of appellant | Loan Association against Anna L. Keach already had a 10-foot walk and that the walk and Fanny L. White. Judgment for defend. that was built along appellant's property was ants, and plaintiff brings error. Affirmed. joined up to it. A mere difference of two- See 72 N. E. 769.
A. C. Norton and R. B. Campbell, for plain- | 520, 14 N. E. 30; Johnson v. Huling, 127 Ill. tiff in error. C. C. & L. F. Strawn, for de 14, 18 N. E. 786. But there is no cloud upon fendant in error Keach. White & Tuesburg, complainant's title to be removed. The bill for defendant in error White.
alleges that both of the defendants admit
the title and ownership of the complainant, CARTWRIGHT, J. Plaintiff in error, Liv and that the only controversy is whether ingston County Building & Loan Associa the property is located in one place or antion, filed its bill in equity in the circuit
other. While the prayer of the bill is broad court of Livingston county against defend enough to involve a freehold estate, the averants in error, Anna L. Keach and Fanny L. ments do not show that there is any adverse White. The court sustained a demurrer of claim of title which is apparently valid and the defendants to the bill and dismissed it, which constitutes a cloud. at complainant's cost.
Complainant has a complete remedy at The facts stated in the bill as a basis for | law, and for that reason cannot resort to a the relief asked for are, that the complain
court of equity. The strip seven feet and ant is the owner of the south 60 feet in width eight inches wide on the north is in the posof lot A, in Babcock's addition to Pontiac, session of Anna L. Keach, and if it is a part which was laid out and platted in 1857 by of complainant's 60 feet there is a remedy Billings P. Babcock, who was then the own against her by ejectment. If the 7 feet and er of the premises; that the defendant Anna
8 inches on the south side, in the possession L. Keach owns the land adjoining complain
of the defendant Fanny L. White, is a part ant's said property on the north and defend
of complainant's lot the law affords the same ant Fanny L. White owns the land adjoin remedy against her. ing complainant's said property on the south; There is no equitable ground for relief to that both said defendants admit that com
prevent a multiplicity of suits. According plainant is the owner of and has the legal
to the bill but one of the defendants is wrongtitle to said south 60 feet in width of lot A, fully in possession of the complainant's propbut they disagree as to where the boundary erty, and, with the facts ascertained, but one lines of the lot are; that defendant Anna L.
action is necessary. The equitable jurisKeach claims that the southern boundary of diction is only exercised when legal remedies lot A is identical with the north line of block are inadequate and there is a necessity for 6, in the city of Pontiac, while the defendant
the interposition of equity to prevent unFanny L. White insists that said southern necessary, annoying and harassing suits. boundary is 7 feet and 8 inches further 14 Ency. of Pl. & Pr. 219. There is no such north; that the defendapt Anna L. Keach bas condition shown in the bill. The bill does taken possession of the land up to the north not allege where the true southern boundary line of complainant's property as she claims
is or where complainant's property is located, it to be, and Fanny L. White has taken pos but prays the court to investigate and detersession on the other side up to the south
mine that question. The bill is not a bill line as she claims it to exist; that defend.
of interpleader, but is brought to enforce ants have left to complainant only 52 feet property rights and interests of the comand 4 inches in width, while they both con.
plainant. In such a case, it is necessary for cede that between the correct boundary lines
the complainant to aver and prove such facts there is a distance of 60 feet; that on ac
as will establish its rights, and it is not the count of the plat being ambiguous as to the
province of a court of equity to take up the starting point, it is not clear whether the burden of discovering the facts necessary to southern boundary of complainant's prop
show where complainant's property is located. erty is identical with the north line of block
The court was right in sustaining the demur6 or whether it is 7 feet and 8 inches north
rer. of the north line of said block. The prayer
The decree is affirmed. of the bill is that the court shall ascertain
Decree affirmed. and fix the true boundary lines of complainant's property, settle the conflicting claims of the defendants in respect to the property
(219 Ill. 72) and the location of such lines, and settle and NEW YORK LIFE INS. CO. v. RILLING. declare the rights and titles of the parties
(Supreme Court of Illinois. Dec. 20, 1905.) to the strips of land in dispute. It is contended that the court erred in not
INSURANCE-ACTION BY AGENT-COMMISSIONS.
An agent of a life insurance company, apsustaining the bill as a bill to remove a cloud
pointed for the purpose of soliciting insurance and quiet title, and also for the reason that from a certain person, resigned after the coma resort to equity was necessary to avoid
pany had declined the risk applied for and a multiplicity of suits. If the bill were a
brought an action for commission on a policy bill to remove a cloud and quiet title it could
subsequently issued to such person on the
solicitation of another agent. Held, that evinot be maintained, for the reason that the dence for the defendant that after the resigna. complainant was not in possession of the
tion of plaintiff he had attempted to obtain a premises in dispute and they were not va
policy for defendant from the same company
was admissible as tending to show an aban. cant or unoccupied. Gage v. Curtis, 122 Ill. donment of the contract.
Appeal from Appellate Oourt, First Dis-, issued to Braun, for which he paid to the trict.
company $10,870 in cash as the first annual Action by Charles W. Rilling against the premium. Appellee claimed the New York New York Life Insurance Company. Judg. Life secured the Braun insurance through ment for plaintiff was affirmed by the Ap | his efforts, and he was entitled to the compellate Court, and defendant appeals. Re | missions provided to be paid him in his conversed.
tract with the company bearing date July Edward O'Bryan, William N. Marshall, and
16, 1902. The appellant claimed that conRufus S. Simmons, for appellant. Newman,
tract was terminated by appellee's resignaNorthrup, Levinson & Becker and C. E.
tion bearing date October 11, 1902, and that Cleveland, for appellee.
the Braun insurance was obtained some 10
months after the termination of said agency, HAND, J. This was an action of assump through the efforts of Nichols, and was a sit commenced in the circuit court of Cook different kind of insurance from that apcounty by the appellee, against the appel. plied for by Braun to the company through lant, to recover certain commissions which appellee and which had been rejected. The he claimed were due him, as a solicitor for question, therefore, whether the appellee insurance, from the appellant. The appellee abandoned his efforts to insure Braun in recovered a judgment in the trial court for the New York Life and his rights under the sum of $5,684.10, which judgment, after said contract at the time he resigned as a remittitur of $2,966.60 had been entered in agent of said company and waived thereby the Appellate Court, was affirmed by that any claim against the company based on the court, and a further appeal has been prose application made to the company by Braun cuted to this court.
through his efforts, became an important It appears from the evidence that the ap question on the trial. It, in fact, was one pellee was in the employ of the Mutual Life of the main grounds of defense relied upou Insurance Company of New York as a solici- by appellant. The appellee and appellant tor for life insurance in the city of Chicago; both understood appellee was only appointed that he solicited one George P. Braun, who as agent of the New York Life for the purresided in Ohicago, and obtained from him pose of handling the Braun insurance. There an application to said Mutual Life for $100,- | was a conflict in the evidence as to what 000 insurance upon his life; that the Mutual was said at the time appellee resigned as Life declined the risk, whereupon appellee agent of the New York Life. Appellee tessought through Mr. Pearman, who was the tified, at the time he resigned he stated to Chicago agent of the New York Life Insur-Mr. Pearman he would not relinquish his ance Company, to place said insurance in rights to the Braun claim, and that Pearsaid New York Life, and on the 16th day of man said to him his resignation would not July, 1902, the appellee, for the purpose of affect his claim for commissions on that inenabling him to obtain the commissions on surance, and that as soon as the chief medsaid insurance should the New York Life in ical examiner of the company came to Chisure Braun, was appointed agent for the cago he would notify appellee, and appellee New York Life. On the next day, through should bring Braun to the New York Life for the appellee, Braun applied to the New York examination. Mr. Pearman, and his assistLife for $100,000 insurance. The company ant of the Chicago office, Mr. Greenwood, did not accept the risk for that amount, but both testified that at the time appellee reoffered to issue Braun a policy for $10,000. signed he said he would do nothing more Its counter proposition was not satisfactory with reference to placing with the New York to appellee, and he declined to submit the Life the Braun insurance, and that he made proposition to Braun. Nothing more seems | no reservations with reference to commisto have been done by appellee with reference sions on the Braun insurance. The court, to the Braun insurance until October 11, | upon the trial, instructed the jury if they 1902, when he executed and delivered to the should find from the evidence "that the letappellant the following instrument in writ ter of Rilling dated October 11, 1902, and the ing: “Chicago, Ill., October 11, 1902. New York transactions and mutual understanding of Life Ins. Co., New York, N. Y.-Gentlemen: the parties in connection with its signing and Referring to the agreement that has been in delivery, constituted an abandonment by existence between your company and myself, Rilling of all rights on the part of Rilling I wish to avail myself of the clause which which had in the past or might in the future gives me the privilege of terminating such accrue to him by reason of the Braun insuragreement. Please have same take effect im- ance matter, then you will find the issues for mediately. Please construe this as my res. the defendant." ignation. Yours truly, C. W. Rilling."
The appellant called Braun as a witness, On the 21st of July, 1903, Braun, through and offered to prove by him that after Octoan agent of the New York Life in Chicago ber 11, 1902, the date of Rilling's resignanamed Nichols, again made application to the tion, the appellee presented Braun to the appellant for $200,000 insurance on his life, Equitable Life, and that Braun through his which was accepted by the company, and efforts applied to said insurance company four policies aggregating that amount were for $100,000 insurance upon his life and