{
  "id": 5638697,
  "name": "The People ex rel. John R. Thompson, County Treasurer, Appellee, vs. Charles H. Smythe et al. Appellants",
  "name_abbreviation": "People ex rel. Thompson v. Smythe",
  "decision_date": "1908-02-20",
  "docket_number": "",
  "first_page": "242",
  "last_page": "248",
  "citations": [
    {
      "type": "official",
      "cite": "232 Ill. 242"
    }
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  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
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  "jurisdiction": {
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    "name_long": "Illinois",
    "name": "Ill."
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    {
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      "reporter": "Ill.",
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      "case_paths": [
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    {
      "cite": "165 Ill. 502",
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      "reporter": "Ill.",
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        3103432
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  "last_updated": "2023-07-14T15:57:03.827578+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People ex rel. John R. Thompson, County Treasurer, Appellee, vs. Charles H. Smythe et al. Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Farmer\ndelivered the opinion of the court:\nThis is an appeal from a judgment against certain lots of appellants and an order for their sale for the non-payment of an installment of a special assessment levied by the city of Chicago for paving a system of streets. Said judgment and order of sale were entered at the July term, 1907, of the county court. Appellants appeared in court July 10, when the collector applied for the judgment and order, and, specially limiting their appearance for that purpose, objected to the jurisdiction of the court on the ground that the publication notice, and affidavit thereto, were void, and also objected that there was a variance between the publication notice and delinquent list, and a variance as to the date of the warrant, description of the improvement, the name of the owner and description of the property as the same appear in the publication and in the tax, judgment, sale, redemption and forfeiture record. On the 16th day of July, 1907, the court overruled all objections and rendered judgment against appell\u00e1nts\u2019 property for the special assessment and ordered it sold to pay the same. From that judgment appellants have prosecuted this appeal.\nThe alleged variances complained of are, that in the publication notice the name of the owner is given as \u201cSmyth & Chew\u201d and in the delinquent list as \u201cSmith & Chew;\u201d also, that the warrant is described in the publication notice as \u201cwith interest on this and the remaining installments at the rate of four per cent per annum from January 2, 1905, to January 2, 1906, and interest on the third installment from January 2, 1906, to March 31, 1906,\u201d while in the delinquent list it is described as \u201cwith interest on this and remaining installments at the rate of four per cent per annum from January 2, 1905, to January 2, 1906, and also interest at the same rate on this installment from January 2, 1906, to March 31, 1906.\u201d\nWe think appellants are in no position here to question the court\u2019s jurisdiction over their persons. The judgment recites that when the cause came on to be heard upon the objections all parties were represented in court by counsel, and that after hearing the evidence and arguments of counsel the objections were overruled and judgment and order of sale entered. The bill of exceptions shows that objectors thereupon moved the court to set aside the order overruling their objections; that upon the court denying said motion they then entered a motion for a new trial, and when this motion was overruled by the court they entered a motion in arrest of judgment. To the action of the court in denying all these motions exceptions were taken. Appellants in nowise limited their appearance in making these motions. To grant or refuse the motions to set aside the judgment of the court overruling appellants\u2019 objections and in arrest of judgment required the exercise of jurisdiction by the court of the subject matter and of appellants, and by appearing generally for those purposes appellants waived their special appearance entered before the trial for the purpose of objecting to the jurisdiction of the court. Nicholes v. People, 165 Ill. 502; Otis v. Sullivan, 219 id. 365; Dickey & Baker v. People, 213 id. 51.\nAppellants contend, however, that the bill of exceptions should not be considered a part of the record in this case. The judgment was entered July 16, 1907, and by an evident mistake the order for an appeal recites that the bond should be filed by September 18, 1905, and the bill of exceptions by September 10, 1906. A bill of exceptions was, in fact, signed by the presiding judge of the court on the 4th day of September, 1907, and on the same day filed with the clerk of said court. By agreement of counsel for'the respective parties, the original bill of exceptions, instead of a copy thereof, has been incorporated in and made a part of this record, and no objection to its consideration has been made on account of the date named for its being filed, in the order for the appeal. A similar mistake is made in said order with reference to the time for filing the appeal bond, but such bond was filed and approved, and no question has been raised as to this having been done within the time contemplated by the order of the court. The court and both parties to this cause, by their acts in preparing, signing and filing the bill of exceptions and the appeal bond, have treated the dates mentioned in the order of the court for filing them, as meaning September, 1907, and it is perfectly apparent that such was the intent of the court in making the order. Under these circumstances, and no objections having been made to the entertainment of the appeal and the consideration of the bill of exceptions as a part of the record, it may properly be considered as a part of the record of the case.\nThe names of the owners of the property objected for are stated in the delinquent list to be \u201cSmith & Chew\u201d while in the publication notice the names of the owners are given as \u201cSmyth & Chew,\u201d and appellants insist that this was a fatal variance and that the court acquired no jurisdiction to render the judgment. It will be seen the only difference is in the use of the letter \u201ci\u201d in the name Smith in the delinquent list and the letter \u201cy\u201d in the said name in the publication notice. This contention of the appellants is wholly without merit. (Lytle v. People, 47 Ill. 422; Gahan v. People, 58 id. 160; Gross v. Village of Grossdale, 177 id. 248.) Appellants have not pointed out wherein there is any material variance in the description of the warrant in the publication notice and the delinquent list, and we see none.\nThe judgment is \u201centered against the tracts or lots of land * * * as described in the objections filed herein and as set forth in the attached schedule, which is made a part of this order, in favor of the People of the State of Illinois, for the sum annexed to the description of each, being the amount of the said special assessment, printer\u2019s fees and costs due and unpaid severally thereon, and it is ordered by the court that said several tracts or lots of land be sold, as the law directs, to satisfy the amount of the said special assessment, printer\u2019s fees and costs annexed to them, severally.\u201d This judgment is not spread in the book containing the delinquent list, which is denominated in section 188 of the Revenue act the \u201ctax, judgment, sale, redemption and forfeiture record,\u201d and this, it is claimed, was erroneous. The Local Improvement act makes the provisions of the Revenue act with reference to the proceedings to recover a judgment against lands for delinquent taxes applicable to proceedings for judgment and sale of lands for the nonpayment of special assessments and special taxes, and we are inclined to the view that, though not expressly so stated, the Revenue act contemplates that the judgment and order of sale should be spread of record in the tax, judgment, sale, redemption and forfeiture record.\nBut if the failure to so spread the judgment of record in said book can be said not to be fatal, there is a fatal defect in this judgment. Attached to the judgment is a list or schedule, referred to in the judgment as made a part thereof. This list, after the names of the owners and description of the property, contains two columns purporting to contain the different sums of money which enter into and form a part of the total amount for which judgment is entered against each tract or lot, and a third column containing the total amount of the judgment. The first of these three columns is headed \u201cAmount of third installment,\u201d the second, \u201cInterest, doll, cts.,\u201d and the third, \u201cTotal, doll, cts.\u201d Interest forms part of the amount in the column headed \u201cTotal, doll, cts.\u201d but there is no mention of interest in the judgment order. The judgment is for \u201cthe amount of the said special assessment, printer\u2019s fees and costs due and unpaid.\u201d Appellee insists that as interest is designated in the schedule referred to in the judgment and made a part thereof, it is as definite and certain arid as much a part of the judgment as if it had been mentioned in the judgment itself. Both the Local Improvement act and the Revenue act provide for interest as a part of the judgment in proceedings of this character, and section 191 of the Revenue act gives a form of judgment which must be substantially followed, and this form mentions each item which enters into and becomes a part of the amount for which judgment is rendered. These items are, \u201camount of taxes (and special assessments, if any,) interest, penalties and costs due severally thereon,\u201d and the order of sale prescribed is, that the lands or lots be sold to satisfy \u201cthe amount of taxes (and special assessments, if any,) interest, penalties and costs.\u201d It is not a substantial compliance with the requirements of the statute that items of which no mention is made in the judgment order may be inserted in a list or schedule referred to, and thereby made a part of the judgment. While in proceedings like this the schedule may, by reference, be made a part of the judgment in so far as the items mentioned in the schedule correspond with the items mentioned in the judgment proper for which it is ordered judgment be entered, where said schedule contains items not mentioned in the order for which judgment was entered, the schedule, as to such items, should not be considered a part of the, judgment. Provisions of the statute designed for the protection of property owners in proceedings of this character must be substantially complied with. People v. Glenn, 207 Ill. 50; People v. Otis, 74 id. 384.\nWe have held that in cases of this character, where no error intervened prior to the judgment, a new trial will not be awarded but the judgment should be reversed and the cause remanded, with directions to the county court to enter proper judgment. (Gage v. People, 207 Ill. 61; Gage v. People, 213 id. 410.) The judgment of the county court will therefore be reversed and the cause remanded to the county court, with directions to that court to enter a judgment and order of sale in compliance with section 191 of the Revenue act, and spread the same of record in the tax, judgment, sale, redemption and forfeiture record.\nReversed and remanded, with directions.",
        "type": "majority",
        "author": "Mr. Justice Farmer"
      }
    ],
    "attorneys": [
      "Taylor & Martin, for appellants.",
      "George A. Mason, and William T. Hapeman, (Edward J. Brundage, Corporation Counsel, of counsel,) for appellee."
    ],
    "corrections": "",
    "head_matter": "The People ex rel. John R. Thompson, County Treasurer, Appellee, vs. Charles H. Smythe et al. Appellants.\nOpinion filed February 20, 1908.\n1. Jurisdiction\u2014when special appearance is waived. Defendants to an application for judgment of sale for taxes, who move to set aside the order overruling their objections, enter motions for new trial and in arrest of judgment and except to the action of the court in denying the motions, waive their' special appearance, entered before the trial, for the purpose of objecting to the jurisdiction of the court.\n2. Bills op exception\u2014when bill is properly considered as part of the record. Where, by mistake, an order for an appeal names a past year in fixing the time for filing the bill of exceptions and appeal bond but the parties consider the order as meaning the present year, as was its plain intent, and file the bond and bill of exceptions accordingly, the bill of exceptions may properly be regarded as a part of the record.\n3. Special assessments\u2014what is not a variance between delinquent list and publication notice. That the names of the owners of property are stated in the delinquent list to be \u201cSmith & Chew\u201d whereas the names are given in \"the publication notice as \u201cSmyth & Chew\u201d does not constitute a substantial variance.\n4. Same\u2014judgment and order of sale should be spread in redemption and forfeiture record. A judgment and order of sale for a delinquent special assessment should be spread of record in the tax, judgment, sale, redemption and forfeiture record.\n5. Same\u2014judgment- and order of sale should mention item of interest. A judgment and order of sale for a delinquent special assessment should mention interest as one of the items going to make up the amount of the judgment, and the omission of such item cannot be supplied by including it in the schedule attached to and made a part of the judgment.\n6. Same\u2014correct practice where only error is in the judgment. Where the only error in a proceeding to sell land for taxes or special assessments occurs in the judgment itself a new trial will not be awarded but the judgment will be reversed and the cause remanded, with directions to the court to enter a proper judgment.\nAppeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.\nTaylor & Martin, for appellants.\nGeorge A. Mason, and William T. Hapeman, (Edward J. Brundage, Corporation Counsel, of counsel,) for appellee."
  },
  "file_name": "0242-01",
  "first_page_order": 242,
  "last_page_order": 248
}