| Ill. | Feb 21, 1907
delivered the opinion of the court:
It is first contended that the court erred in declining to dismiss the case on the ground that the solicitors who filed the bill were without authority to represent the appellee in filing said bill. The motion was based upon the affidavit of Harrigan, which states that ITarrigan had searched the records of the board of supervisors of Peoria county from the first Monday of December, 1900, to and including July 22, 190.1, the date when the bill was filed, and was unable to find any record authorizing the State’s attorney of said county, and the other solicitors who signed the bill, to institute said suit or to act-in any manner for complainant. The State’s attorney, or the other solicitors in the case for appellee, may, from aught that appears from said'affidavit, have been authorized by appellee, prior to the first Monday of December, 1900, to file the bill for and on its behalf against appellants, which would have authorized them to commence thfe suit. We think the circuit court did not err in declining to dismiss the case for want of authority in the solicitors of appellee to commence the suit, in view of the showing made in support of said motion.
It is further urged that the court erred in declining to strike appellee’s replication to appellants’ answers from the files, and in referring the case to the master to take proofs, and in basing a decree upon the master’s finding of the amount due the appellant Harrigan for the amount of his bid, subsequent taxes, interest and costs. When the case came back from the Appellate Court, we are of the opinion the circuit court might, in accordance with the view expressed by the Appellate Court, in the exercise of a sound discretion, as the cause was remanded g-enerally, permit a replication to be filed by appellee, and proof to be taken before the master to establish the amount of taxes, if any, which the appellant Harrigan had paid subsequent to the tax sale, in order that a decree might be entered fixing the amount which should be paid to Harrigan by appellee as the amount of his bid, subsequent taxes, interest and costs, in accordance with the view of the Appellate Court, if a replication was necessary to be filed in order that such proof might be received and considered by the court.
The title to the premises covered by the tax sale was formerly in Addie Cole. She died intestate. The county of Peoria prosecuted certain proceedings in the circuit court of that county, in which a decree was entered declaring the county of Peoria to be the owner of said premises by escheat. Pending that proceeding the premises were sold for taxes to appellant Harrigan. He failed, however, to give the county of Peoria notice of the tax sale, as appears from his affidavit filed with the county clerk, in accordance with the statute, before the time of redemption from such sale had expired, and as it appeared the county of Peoria had an interest in the premises and was not notified of such tax sale, in accordance with the statute, prior to the time when the period of redemption expired, it was held by the trial and by the Appellate Courts on the first appeal, that for want of such notice the county clerk was not authorized by law to issue a deed upon said tax sale to Harrigan. On the second trial and upon the second appeal to the Appellate Court, and upon this appeal, the correctness of the holding of the Appellate Court upon the first appeal is not called in question by the appellants, but their contention now is, that as no replication was filed prior to the disposition of the case upon the first appeal in the Appellate Court, the first trial was had upon bill, answer and exhibits, and that the case, upon being remanded, should again have been tried upon the bill, answer and exhibits, and without permitting the appellee to introduce evidence to show the amount which should be paid to the appellant Harrigan in satisfaction of said tax sale, subsequent taxes, interest and costs, as a condition precedent to the issuing of an injunction, and that as the bill, answer and exhibits fail to show such amount, the bill, upon the case being re-instated, should have been dismissed by the trial court.
While it is true no replication was originally filed, the case was tried upon the bill and answer and the record of the escheat proceedings and the affidavit of Harrigan filed with the county clerk at the time he applied for a deed under said tax sale, certified copies of which record and affidavit were filed with and attached to said bill. The case was not, therefore, tried upon bill and answer, and the parties having proceeded to trial without a replication having been filed, and the decree having been reversed by the Appellate Court on the ground that it was necessary to recite in the decree the amount which should be paid to appellant Harrigan by the appellee to reimburse him for the amount he had paid at the tax sale and for subsequent taxes and costs, it was proper, when the case was re-docketed in the trial court after the first appeal to the Appellate Court, to hear proof as to the amount which the appellant Harrigan had paid at the tax sale and subsequent thereto, as a condition precedent to the issuing of a perpetual injunction enjoining the issuing of a tax deed upon said tax sale, even though no replication had been filed, as by going to trial in the first instance without a replication being on file the lack of a replication was waived. Marple v. Scott, 41 Ill. 50" date_filed="1866-04-15" court="Ill." case_name="Marple v. Scott">41 Ill. 50; Jones v. Neely, 72 id. 449; Imperial Fire Ins. Co. v. Shimer, 96 id. 580.
Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.
Judgment affirmed.