107 Ill. 75 | Ill. | 1883
delivered the opinion of the Court%
This was a petition filed in the circuit court of Alexander county, for a writ of mandamus to compel the city of Cairo to levy a tax to satisfy a judgment against it in favor of the petitioner. The circuit court gave judgment awarding the writ, which was affirmed by the Appellate Court for the Fourth District, and an appeal taken to this court.
The judgment was rendered upon the sustaining of a demurrer to the replication to the plea to the defendant’s answer, and the question presented is as to the sufficiency of the demand for the performance of the act sought to be enforced.
On the 1st day of July, 1879, appellee made a written demand upon the city council for the payment of his judgment, which was referred by that body to the corporation counsel, who never reported on the same. The demand stated the recovery of the judgment against the city on July 1, 1878, in the circuit court of Alexander county, for $1200, and costs of suit; that the city took an appeal from the judgment to the Appellate Court for the Fourth District, which court, at its February term, 1879, affirmed tbe judgment, and that it was in full force, and remained wholly unpaid and unsatisfied, and stating the amount due at the time of the demand. The petition was filed October 6, 1882.
It is objected to the demand that it did not demand the particular thing prayed for in the petition, viz: the levy of a tax. It was the duty of the city council to pay the judgment if there were sufficient funds in the city treasury to pay it therefrom; if not, then to take the necessary steps to bring into the city treasury the requisite funds. The judgment creditor would not be supposed to know whether there were, or not, funds in the city treasury for the payment of his judgment. We think it sufficient for him to demand the payment of his judgment,—that this may be held as including a demand to do any particular thing which was necessary to be done to enable the city council to make payment of the judgment.
Further objection is taken that the demand was premature, in its being made before a copy of the order of affirmance of the judgment of the circuit court was filed with the circuit clerk. This, is founded upon the 82d section of the Practice act, providing that when, upon an appeal or writ of error, a judgment is affirmed, upon a copy of the order of affirmance being filed in the office of the clerk from which the case was removed “execution may issue, and other proceedings be had therein, in all respects as if no appeal or writ of error had been prosecuted.” (Eev. Stat. 1874, p. 785, sec. 83.) This, we think, has respect alone to proceedings in the lower court for the carrying into execution of the judgment, and has no application to independent proceedings upon the judgment elsewhere, as in the present case. A copy of the order of affirmance was filed in the circuit clerk’s office on January 21, 1882.
It is objected further, that there had been no copy of the judgment certified to the city council, as required by the judgment itself of the circuit court. That judgment did thus order, but it was a provision whose performance was not at all essential to the validity of the judgment, nor, as we conceive, to the taking of any proceedings for the enforcement of its execution. There was a certified copy of the judgment delivered to the city clerk, at his office in the council chamber, on July 11, 1882, with a second demand of payment indorsed thereon. But what we have already said renders it unnecessary to consider the effect of this second demand.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
