{ "id": 831440, "name": "James H. Carter et al. v. Frederick Rodewald et al.", "name_abbreviation": "Carter v. Rodewald", "decision_date": "1884-01-22", "docket_number": "", "first_page": "351", "last_page": "358", "citations": [ { "type": "official", "cite": "108 Ill. 351" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "49 Ill. 255", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2603008 ], "opinion_index": -1, "case_paths": [ "/ill/49/0255-01" ] }, { "cite": "102 Ill. 359", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2812589 ], "opinion_index": -1, "case_paths": [ "/ill/102/0359-01" ] }, { "cite": "39 Ill. 127", "category": "reporters:state", "reporter": "Ill.", "weight": 3, "pin_cites": [ { "page": "162" }, { "page": "145" } ], "opinion_index": -1 }, { "cite": "102 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2811221 ], "opinion_index": -1, "case_paths": [ "/ill/102/0493-01" ] }, { "cite": "65 Ill. 286", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "44 Ill. 13", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "60 Ill. 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500212 ], "opinion_index": -1, "case_paths": [ "/ill/60/0179-01" ] }, { "cite": "35 Ill. 164", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5256780 ], "opinion_index": -1, "case_paths": [ "/ill/35/0164-01" ] }, { "cite": "81 Ill. 551", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2671919 ], "opinion_index": -1, "case_paths": [ "/ill/81/0551-01" ] }, { "cite": "73 Ill. 618", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5319306 ], "opinion_index": -1, "case_paths": [ "/ill/73/0618-01" ] }, { "cite": "98 Ill. 399", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2837229 ], "opinion_index": 0, "case_paths": [ "/ill/98/0399-01" ] }, { "cite": "92 Ill. 299", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "102 Ill. 359", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2812589 ], "opinion_index": 0, "case_paths": [ "/ill/102/0359-01" ] } ], "analysis": { "cardinality": 652, "char_count": 15382, "ocr_confidence": 0.457, "pagerank": { "raw": 1.7184982833807653e-07, "percentile": 0.7035585858480552 }, "sha256": "4929a88c9ce23ac2b17967b922905d9d88d621e872994f5d2b447ca3380743a5", "simhash": "1:9adee151428af3c5", "word_count": 2750 }, "last_updated": "2023-07-14T19:41:48.299070+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James H. Carter et al. v. Frederick Rodewald et al." ], "opinions": [ { "text": "Mr. Chief Justice Sheldon\ndelivered the opinion of the Court:\nThis was a bill in chancery to restrain the-collectors of taxes of certain counties from taking any steps for the purpose of charging the capital stock tax for the year 1873, assessed against the Cairo and Yineennes Bailroad Company upon the road-bed, right of way, railroad track and real estate of said railroad company, and to enjoin the receivers of said company from paying such tax. The defendants failing to make answer to the bill, a decyee pro confesso was entered against them, in accordance with the prayer of the bill. The collectors of taxes sued out this writ of error.\nThe first error assigned is as to supposed defects in the service of process. The return of service upon the defendant Burnett is:\n\u201cI have duly served the within by reading the same, and delivering a true copy thereof to the within named George E. Burnett, as I am therein commanded.\n\u201cApril 18, 1878. James H. Pease, Coroner.\u201d\nIt is objected that the return does not show a copy of what was delivered, or the time of service,\u2014that the date appearing is that of the return, not of the service. The return being indorsed on the summons, stating that the within was delivered, is a statement that the summons was delivered. The date which appears refers with sufficient certainty to the time of service, and is to be taken as that, and not the time of the return. Chic, and St. Louis R. R. Co. v. Holbrook, 92 Ill. 299.\nIt is objected that the defendant Carter is commanded to\" appear \u201cbefore the circuit court of said Alexander,\u201d\u2014not Alexander county. This is a mere clerical omission, of no consequence. The caption of the writ is, \u201cState of Illinois, Alexander county, ss.,\u201d and the words which follow, commanding the defendant \u201cto appear before the circuit court of said Alexander, at the next term thereof, to be holden in the cit/of Cairo, in said Alexander county, on,\u201d etc., inform the defendant of what the omission was, and that it was the circuit court of Alexander county before which he was to appear.\nIn a suit in the United States Circuit Court for the Southern . District of Illinois, there had been appointed two persons receivers of the railroad, and it is alleged to be error that the State court took jurisdiction of the receivers, and decreed a perpetual injunction against them,\u2014that the United States court alone had cognizance of the matter. The receivers are. not parties to the writ of error, and as they are not complaining of the decree, the court is not called upon to review it as against them. But if it were, we should find no error. The object of the bill was to enjoin the collection of taxes assessed by the authorities of the State, and the fact that the property sought to be made liable for the taxes was in the possession of the United States court, by the receivers, could not affect the jurisdiction of the State court as to the subject matter. The receivers might have objected to being sued in the State court, but did not. The receivers might be sued in the State court, with the permission of the court appointing them, and no objection having been made, such permission may well be presumed.\nIt is objected that the court had no jurisdiction over any bondholder except the complainant Bodewald, and yet that the decree-is in his favor and in favor of all other bondholders\u2014 that the other bondholders should have been made defendants, as unknown bondholders. The only ground for this objection is that the complainant Bodewald states-, in his bill, that he brings the suit on his own behalf, as a bondholder, and on behalf of all other bondholders of mortgage bonds of the railroad company, which the property in question had been mortgaged to secure. The decree is not in terms in favor of all the bondholders. The relief prayed and granted was such as would have been granted, if at all, in behalf of complainant suing alone. His interest extending to the entire property threatened, entitled him to the protection of the -court in that regard, and to ail the relief granted, independent of the other bondholders; and the interest of all the bondholders was so identical and inseparable, that he was entitled to sue in behalf of all, as well as in his own behalf. It is- a common form of suit in such cases.\nAnother assignment of error is, that on May 20, 1878, a rule was entered upon the defendants to answer the bill by the following Wednesday morning, and that on the same day the rule was entered the defendants were defaulted. It is true that the transcript of the proceedings does so show, but the decree itself finds that \u201cthe defendants having each failed to answer complainants\u2019 bill, as by the rule of the court they were required to do, and each of said defendants being three times solemnly called, came not, but made default. \u201d As every presumption is in favor of the regularity of the proceedings of the court, we may take the fact to be as asserted by the decree, that the defendants had failed to answer, as required by the rule, and regard the inconsistency in the dates as a clerical error.\nAs respects the merits of the ease, the mortgage or deed of trust of the railroad property, to secure the payment of the bonds of the company, was made in 1871. All the bonds had been sold on the market prior to January 1, 1873. The capital stock tax in question was assessed in the year 1873. This capital stock tax is a personal property tax, and although, by section 255 of the Revenue act, real property is made liable for taxes on personal property, it is provided that the tax on personal property shall not be charged against real property, except in case of removals, or where the tax can not be made out of the personal property. Section 183 of the act provides how the tax on personal property shall be charged against real property; that the collector of taxes shall select for that purpose some particular tract or lots of real property owned by the person from whom the personal property tax is due, and in his advertisement for judgment against and sale of lands delinquent for taxes, shall designate the particular tract or lots of real property against which such personal property tax is charged, and in'the list filed for such judgment the same shall be shown, and that the court shall give judgment against such tract or lots of real property for such personal property tax.\nA tax on personal property does not become a lien on real estate until the collector of taxes shall select for that purpose some particular tract or lots of real property, and charge the tax against the same, as above named. Belleville Nail Co. v. The People, 98 Ill. 399; Ream et al. v. Stone et al. 102 id. 359; Parsons v. East St. Louis Gas Light Co., post, p. 380. And see Binkert v. Wabash Ry. Co. 98 id. 206; Cooper v. Corbin, 105 id. 225. The corporation against whom the personal property tax was assessed had parted with all interest in this real estate in which the bondholders were interested. The decree finds that the equity of redemption was of no value whatever, and that the property was no longer in the possession of the corporation, but was in the hands of the court by its receivers. There was nothing against which this tax could be charged, except property belonging exclusively to the bondholders, or held for their benefit. Their interest having been acquired long before the tax was assessed, the bondholders, we think, were entitled to the relief granted, to prevent making the threatened charge against the property of this personal property tax, and thereby clouding the title and impairing the security.\nAs to the suggestion that the remedy was at law, and not in chancery, this court has frequently held that one who obtains a lien on personal property prior in time to a tax assessed against the former owner, is entitled to have enjoined the seizure of such property for the tax. Ream v. Stone, 102 Ill. 359; Binkert v. Wabash Ry. Co. 98 id. 205; Cooper v. Corbin, 105 id. 225.\nAs to the decreeing of costs against the defendants, that being a matter resting in the discretion of the circuit court, under the statute, we do not see proper to interfere with the exercise of such discretion. \u2022\nThe decree will be affirmed.\nDecree affirmed.", "type": "majority", "author": "Mr. Chief Justice Sheldon" } ], "attorneys": [ "- Mr. A. G. Damron, Mr. L. M. Bradley, Mr. W. Y. Choisser, and Mr. P. A. Pearce, for the plaintiffs in error:", "Messrs. Greene, Burnett & Humphrey, for the defendants in error:" ], "corrections": "", "head_matter": "James H. Carter et al. v. Frederick Rodewald et al.\nFiled at Mt. Vernon January 22, 1884.\n1. Return of service\u2014sufficiency. A return to a chancery summons was as follows: \u201cI have duly served the within by reading the same, and delivering a true copy thereof to the within named C D, as I am therein commanded. April 18, 1878\u201d: Held,, as showing a valid service, and that the return sufficiently showed that a copy of the writ was delivered, and that the date referred to the time of service, and not to the date of the return.\n2. Summons\u2014description of court. A summons in chancery, the caption of which was, \u201cState of Illinois, Alexander county, ss.,\u201d commanded the defendant to appear \u201cbefore the circuit court of said Alexander,\u201d omitting the word \u201ccounty.\u201d The subsequent words were, \u201cat the next term thereof, to be holden in the city of Cairo, in said Alexander county, on,\u201d etc.: Held, that the omission of the word \"county\u201d was a mere clerical omission, and of no consequence.\n3. Ebbob\u2014party can not urge error as to one not objecting. On a bill to enjoin the collection of faxes against a railroad company whose property was in the hands of a receiver, a decree was made enjoining the collection of the taxes, and also the receiver from paying the same: Held, that the collector enjoined could not assign for error the decree against the receiver.\n4. Beceiveb\u2014conflict of jurisdiction. After the appointment of a receiver of an insolvent railway company by the United States Circuit Court, at the suit of certain bondholders, and possession taken by such receiver, the bondholders of the company secured by deed of trust on the real estate of the company filed a bill in the circuit court of the State to enjoin the collection of the personal property tax of the corporation by the sale of the mortgaged property, and to enjoin the receiver from paying the same out of assets in his hands: Held, that the fact that the property sought to be made liable for the taxes was in the possession of the United States court, by the receiver, could not affect the jurisdiction of the State court as to the subject matter, and that permission to sue the receiver in the State court might be presumed from the fact of no objection being made.\n5. Chancebt\u2014when party may sue in his own behalf and that of others. The holder of a portion of bonds secured by deed of trust given by a railway company, in order to protect the mortgaged property or fund securing his and others\u2019 bonds, may file a bill in his own behalf and in behalf of all other holders of such bonds, his interest and that of the others being identical and inseparable.\n6. Pbactice\u2014default\u2014presumption in favor of ruling below. On the same day a rule was entered requiring the defendants to answer a bill by a future day, it appeared by entry of record the defendants were defaulted, the decree, however, finding that \u201cthe defendants having each failed to answer complainants\u2019 bill, as by the rule of the court they were required to do, \u201d etc.: Held, that as every presumption is in favor of the regularity of the proceedings of a court, it would be taken that the- decree asserted the fact, and the inconsistency in dates be regarded as a clerical error.\n7. Lien bob taxes\u2014personal property tax as a lien on real property. A tax on personal property, as, on the capital stock Of a corporation, does not become a lien on real estate until the collector shall select for that- purpose some particular tract or lots of real property, and charge the tax against the same in his application for judgment.\n8. Injunction\u2014to prevent seizure of property not liable to tax. A person who obtains a lien on property prior in time to that of a tax assessed against the owner, is entitled to have enjoined the seizure of such property for the tax.\n\u2022 Weit of Eeeoe to the Circuit Court of Alexander county; the Hon. David J. Bakes, Judge, presiding.\n- Mr. A. G. Damron, Mr. L. M. Bradley, Mr. W. Y. Choisser, and Mr. P. A. Pearce, for the plaintiffs in error:\nThe return of service as to Burnett is defective. It should have a service of the \u201cwithin writ.\u201d A statement that he \u201cserved the within, \u201d is not good. The return should show what was served, and when it was served. The return is dated, but not the date of the service. Carter is commanded to appear \u201cbefore the circuit court of said Alexander,\u201d\u2014not Alexander county. Hochlander v. Hochlander, 73 Ill. 618; Dick v. Moore, 85 id. 66; Practice act, sec. 4.\nThe Federal court alone had cognizance of the matter. High on Receivers, sec. 48. See, also, Richards v. People, 81 Ill. 551.\nThe court had no jurisdiction over any bondholder except Rodewald, and yet the decree is in his favor and in favor of all other bondholders.\nWhen the decree was entered defendants were not in default, as the time they were required to answer had not expired. \u25a0 This was error. Pratt v. Grimes, 35 Ill. 164; Clark v. Ewing, 87 id. 344.\nThe whole property was bound for the payment of the tax, and the bondholders were as much interested in shielding the rolling stock from taxation as the real estate. \u2019 Taxes on personal property may be properly charged upon real estate. Revenue act, secs. 255, 183; Schaffer v. People, 60 Ill. 179.\nA court of equityrwill not take jurisdiction to restrain the collection of a tax for mere irregularity. Vieley v. Thompson, 44 Ill. 13.\nThe general doctrine as to when equity will interpose, is stated in Du Page County v. Jenks, 65 Ill. 286; Lemont v. Singer da Talcott Stone Co. 98 id. 102; Munson v. Milter, 66 id. 380; Union Trust Co. v. Weber, 96 id. 346.\n\u2022 The remedy, if any, was at law, and defence could have been made in the county court. Revenue act, sec. 190; Archer v. Terre Haute R. R. Co. 102 Ill. 493; Foss v. Chicago, 56 id. 359; Pease v. Chicago, 21 id. 500.\nMessrs. Greene, Burnett & Humphrey, for the defendants in error:\nThe summons, with the return thereon as to Burnett, was filed with the clerk October 22, 1877. The service and return must have been made before that time. Rivard v. Gardner, 39 Ill. 127; Banks v. Banks, 31 id. 162; Reddick v. State Bank, 27 id. 145; Timmerman v. Phelps, id. 496; Coursen v. Hixon, 78 id. 339.\nBefore this tax became any lien the railroad company had been divested of the property, and the tax warrants subsequently issued could not attach as liens upon the same as against prior liens and rights of 'creditors. Ream v. Stone, 102 Ill. 359; Binkert v. Wabash Ry. Co. 98 id. 205; Gaar, Scott & Co. v. Hurd, 92 id. 315.\nThe suit was properly brought by complainant for himself and on behalf of all other bondholders, their interests being identical and inseparable. Story\u2019s Eq. PI. secs. 97-115.\nAs every presumption is in favor of the regularity of the proceedings of a court, it will be taken that the decree finding that the defendants failed to answer as required by the rule, is true, and this court will treat the inconsistency in the dates shown, as a clerical error, and disregard it.\nThe jurisdiction of a court of equity in a case of this class is very manifest. Hickey v. Forrestal, 49 Ill. 255; Ohling v. Luitjens, 32 id. 33." }, "file_name": "0351-01", "first_page_order": 351, "last_page_order": 358 }