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as evidence in the Ryan case, and was conclusive upon the guardian and his sureties unless impeached for fraud or mistake. (Ryan v. People, supra; Gillett v. Wiley, 126 Ill. 310.) This evidence was sufficient to authorize a recovery under either of the amended counts of this declaration. The default of the plaintiff in error admitted all matters well pleaded, and the evidence authorized a judgment for the amount found due.
It is contended that where an amended declaration setting up a different cause of action is filed after service of summons, and no appearance by one of the defendants, no judgment can be entered upon such declaration without a new summons or notice. It is also contended that where the amended count states a new cause of action at the same term at which the original count was filed, the statute of this State which provides for filing the declaration ten days before the term at which judgment may be entered precludes a right to a judgment on such declaration. It is further contended that the defendant in the original declaration having been served but not appearing, and a default entered, it is error to enter a judgment without any notice or rule upon the defendant to plead to the amended declaration.
The several contentions of plaintiff in error cannot be sustained. By section 23 of the Practice act (Rev. Stat. p. 778,) it is provided: “At any time before filing judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable,
changing the form of the action, and in any matter, either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought." Section 25 of the same act provides that “no amendment shall be cause, for a continuance unless the party affected thereby, or his agent or attorney, shall make affidavit that in consequence thereof he is unprepared to proceed to or with the trial of the cause at that term.” By the service of
summons the plaintiff in error had notice of the pendency of the cause of action against him, and it was his duty to take notice of the law, which he is presumed to know, and under this presumption he is compelled to take notice of the fact that by leave of court the plaintiff might make any amendment necessary to sustain the cause of action for which his suit was intended to be brought. A defendant is compelled to know and take notice of the fact that the cause in which he is summoned to appear at a particular term of court may be continued from term to term, and under the law he must be in court, and no special notice is required of such continuances, or of any order made at a subsequent term to which the cause may be continued. In the absence of rules of court to that effect, no special notice is required of any amendment of any part of the record of the current term, as the presumption of law is that by reason of the service of summons the defendant is constantly present in court, and therefore has notice of all that takes place. (Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 Ill. 614.) Neither is it necessary, in the absence of rules of court to that effect, for the defendant to have notice of every amendment. By the service of summons he is brought into court, where it is his duty to be and appear until the case is disposed of, and he is entitled to no further service or notice under the practice in this State. If an amendment is made during the current term and before the final judgment, it is his duty to take notice of the same without any additional notice or summons.
The judgment of the Appellate Court for the First District is affirmed.
THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY
THE PEOPLE ex rel. Walter Warner, County Collector.
171 249 193 1599 171 249 194 2 18
Opinion filed February 14, 1898.
1. TAXES—what will not render road and bridge tax invalid. The failure of highway commissioners to deliver to the town supervisor, on or before the Tuesday next preceding the annual meeting of the board of supervisors, the statement of the amount necessary to be raised for road and bridge purposes, (Laws of 1883, sec. 119, p. 163,) does not render the road tax invalid, where it appears that such statement was delivered before said annual meeting, and was submitted and acted upon and the tax extended on the books.
2. SAME-collector's application is prima facie sufficient to authorize judgment. A tax collector's application for judgment for delinquent taxes, which is regular in form, is prima facie sufficient to authorize judgment, and one objecting thereto must specify the particular cause of objection in writing, and sustain the same by evidence sufficient to overcome the collector's prima facie case.
APPEAL from the County Court of Whiteside county; the Hon. H. C. WARD, Judge, presiding.
WILLIAM BARGE, and C. LEROY BROWN, for appellant.
WALTER STAGER, State's Attorney, for appellee.
Mr. JUSTICE CARTER delivered the opinion of the court:
This is an appeal from a judgment of the county court of Whiteside county against the property of appellant for delinquent road and bridge taxes levied by the highway commissioners, respectively, of the towns of Hopkins and Mt. Pleasant, in said county.
In view of the objections filed below and the stipulation entered into between the parties, the only question to be considered here is, does the fact that the commissioners of highways failed to deliver to the supervisor of the town, on or before the Tuesday next preceding the annual meeting of the board of supervisors, the statement
of the amount necessary to be raised for road and bridge purposes, as required by the statute, (Laws of 1883, sec. 119, p. 163,) render such road and bridge tax levied by such commissioners invalid, where it appears that the state. ment was delivered to the supervisor after said Tuesday and before such annual meeting, and was duly submitted to said meeting of said board for their action, and the tax was duly extended on the tax books. We are of the opinion it does not. It is stipulated that there is no other irregularity in this tax levy.
The levy was made, the statement was delivered to the supervisor before the annual meeting, it was before the board of supervisors, the proper action was taken by the board and the tax duly extended, and yet it is contended that the levy is void because the statement was not delivered on the Tuesday mentioned in the statute, but a few days later, and the following cases are cited in support of this contention: Cowgill v. Long, 15 Ill. 202; Mix v. People, 72 id. 241; Riverside Co. v. Howell, 113 id. 256; Ohio and Mississippi Railway Co. v. Comrs. of Highways, 117 id. 279; St. Louis Bridge and Tunnel Railroad Co. v. People, 127 id. 627; St. Louis Nat. Stock Yards v. People, id. 22.
The first two of these cases were decided before the enactment of section 191 of the Revenue act, which provides that “no assessment of property or charge for any of said taxes shall be considered illegal on account of any irregularity in the tax lists or assessment rolls, or on ac. count of the assessment rolls or tax lists not having been made, completed or returned within the time required by law, * * and no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof." (Laws of 1873-74, p. 51; 3 Starr & Curtis, 3171.) In Buck v. People, 78 Ill. 560, Chiniquy v. People, id. 570, Thatcher v. People, 79 id. 597, and St. Louis, Vandalia and Terre llaute Railroad Co. v. Surrell, 88 id. 535, it was held that this amendment to the statute had the effect of overruling previous decisions which had held that the time for making returns of the kind here involved was mandatory and could not be made at a time later than that provided by the statute; and it was said in the Thatcher case, supra, in speaking of the 191st section, that “by it nearly, if not all, our previous decisions have been abrogated as rules for the determination of cases arising after the adoption of this amendment,” and Mix y. People was expressly referred to in the Buck and Chiniquy cases as no longer authority on questions of this character. (See, also, Ohio and Mississippi Railway Co. v. People, 119 Ill. 207, and Wabash Railway Co. v. People, 138 id. 316.) In the latter case, in commenting on Ohio and Mississippi Railway Co. v. Comrs. of Highways, 117 Ill. 279, and Leachman v. Dougherty, 81 id. 324, it was said that "in both of those cases it affirmatively appeared that the certificates and lists, by virtue of which the respective taxes were levied, were not returned to the board of supervisors." The case in 117 Ill. 279, was an action of debt to recover taxes on forfeited property, and the lists were not presented to the board of supervisors, and the board made no order for the extension of the taxes. Besides, it was stipulated that the county clerk had no other authority for extending the taxes on the tax books than the lists of the road overseers, and so it was held no recovery could be had. In St. Louis Nat. Stock Yards v. People, 127 Ill. 22, (cited by appellant,) while it was said that the commissioners could act only in the manner and at the time specified in the statute, still, as it appeared that the commissioners met on the day specified in the statute and adjourned to a later day, at which adjourned meeting the levy was made, the levy was held valid. It was not mentioned or considered in that case whether the amendment to the Revenue act contained in section 191 would have cured the defect or not. Nor does it appear in the case at bar whether the commissioners