*1 conformity proceed with with remanded direction to expressed. herein the views part. part, Affirmed reversed remanded TRAPP and concur. CRAVEN, JJ., Jack et al., Appellees, Roy Rydbom, L. et McMillen,
al., Appellants. 64-61.
Gen. No. District. Second February 16, 1965.
Supplemental opinion April 9,1965. April
Rehearing denied 9,1965. *3 Richard C. and H. Koch, Chicago, David Arm- strong, of Aurora H. (Allan Blair, L. David Armstrong and Richard C. for Koch, counsel), appellants.
Sype and of Rockford Kali- Kalivoda, F. (Fredrick voda, of for counsel), appellees.
DAVIS, J. This is an from appeal Order Circuit Court of defendants’ Winnebago County overruling motion to strike and plaintiffs’ dismiss amended com- from a plaint pro and decree confesso plain- quieting tiffs’ title to certain real estate a tax invalidating conveyance on deed and a certain mesne based such deed. alleged complaint
Plaintiffs’ “defend- amended that premises ants’ claim in on an tax said based invalid plain- deed dated and is a clond on December plaintiffs tiffs’ and fee of said title,” that are owners premises, having taken Trust- title thereto certain July ee’sDeed dated 5,1956. charged motion
Defendants’ that the Circuit lacked to set aside the tax deed. The basis complaint contention was that said constituted validity an unwarranted attack on the of the Order Winnebago County, Court of autho rizing the deed, issuance of the tax in violation of the provisions of section 266 of the Revenue Act of 1939, par 747). as amended. Rev Stats The Order of the Court was entered Decem- required by ber 1962. It “all recited that notice law given petitioner, has been John J. O’Brien has complied provisions entitling with all of the law it to parcel a tax deed to said of real estate.” The motion asserted that the defendants became purchasers premises bona fide of said on December 10, plaintiffs knowledge that 1963; had that sale of said premises yet to defendants was imminent, failed to filing take action until the on this action or about March 1964; therefore defendants’ title cannot be disturbed. Defendants’ motion also chal- lenged plaintiffs’ allegation “that defendants’ *4 claim ... plain- is based on an invalid tax deed” and allegation ownership tiffs’ premises, of said unjustified legal and erroneous and conclusions, stated complaint that said did not state a cause of action. Upon hearing in the trial Court, defendants elected to stand on their motion to strike and dismiss
17 complaint. thereupon the amended The Court over- complaint ruled defendants’ took said as con- motion, by fessed without the benefit defendants, and, concerning the issue, evidence matters entered appealed from. Order propriety appealed from rests Order upon
squarely section 266 of the the construction of (Ill 1951, 1963, Revenue Act as amended in Rev Stats par 747), Practice Act c 120, 72 Civil pertaining (Ill par 72), to the Rev Stats conclusive of the order of the Court effect application judgment county collector’s annual delinquent for 1958. and sale for taxes Such judicially performance of conditions determined the precedent relative to to the issuance of tax deed notice and directed that such deed issue. construed the Illinois Su
These statutes were beginning preme gamut with Cherin in a of cases Company ending Lois, v. R. & with Urban C. NE2d 29 Ill2d Lois, Inc., 542, 194 to wit: Urban v. Inc., People Wright (1963); 446, 26 Ill2d Doe, ex rel. 294 (1962); Freisinger Bond v. Interstate NE2d 222 187 Stanley (1962); v. Bank 24 Ill2d 179 Co., Shapiro (1961); 23 Ill2d Marion, (1961); Hruby, NE2d Remer v. 775 (1961); NE2d Ill2d 504, 173 21 Co., Interstate Bond Ill2d Willis, Trust Bank and Co. v. Southmoor Co., v. R. C. and Cherin & (1957). NE2d 447, 143 involving January jurisdiction over cases 1,1964, On Supreme to the from the transferred freehold was Article. Appellate the New Judicial appeal Consequently, 1870.) § of art VI, Const towas this Court. Supreme statutes, of these construction purpose legislative overall considered
Court section render tax titles Act to Revenue 266 of the *5 Prac- merchantable and that of section 72 Civil provide simple comprehensive tice Act procedure, one but applicable proceedings, whereby to all litigant may post-trial appropriate seek relief in all penumbral cases. The area created these statutes only by progressively clear has been rendered litigation in course of these cases. development in connection of Illinois law with issuance of tax and after the before deeds,
amendment of v. Section was reviewed Cherin pages R. & Co., C. NE2d 235. At 447, 143 the Court stated: “Prior to the amendment of 1951 the statutes contemplated county clerk should ad ministratively giv determine the factual matters ing rights parties rise to the substantive after namely an expiration annual tax sale, period redemption giving statutory and the notices. Such determination was made him from affidavits on file in his office and he issued tax deeds therefrom culmination of the (Laws annual p tax sale involved of 1933, 923; People 277). Altman, Since this not was judicial determination of facts, on court, required review, utmost strict observance of form. No defect or omission in the affidavit supplied, filed with regardless the clerk could be might of what (Esker the real facts have been Gage Mayer, Ill Heffernan, 159 38, 45; Ill 638.) beyond power It 632, to of the court upon hearing determine from the evidence statutory precedent whether the conditions had (Lawton been met. 630.) v. Sweitzer, 354 Ill exacting, procedure Such technical resulted numerous defective time-consuming titles and litigation, and served to encumber rather than again free land to once enter the stream of com- *6 aliquot meree and bear its share of the tax burden.” pages at 452 and held 453, Cherin the Court that legislature, in
the 266 of the Act as Section Revenue procedure approved in 1951, amended by assimilated the in 253 Ill NE Zaleski, 63, the Clark v. Court (1912), proceedings; tax relative to foreclosure and procedure that under the of amendment, application judgment filing petition, in for the annual delinquent supplemental sale for for decree taxes, and proof approved, issuance of tax deed was of for the judicial by requisite discontinued, notice affidavit compliance statutory col ordained, determination of stability greater thereof and of lateral attack barred, title established. also that
The Court held, Cherin, jurisdiction to issue. At Court had to order tax deed pages 455, 454 and stated: jurisdiction subject county
“The court had jurisdiction acquired the land in matter and by proceeding question publication in county application judgment for and collector’s delinquent jurisdiction and lands, sale of retained to enter for issuance of deed writ of upon proof provided notice assistance, as 263 of the Revenue Act. Rev Stats 744.) par legislature gave 1955, county jurisdiction to hear and court the same supplemental proceedings in tax determine proceedings. (People Altman, foreclosure properly 277.) invoked This case for a conclusive determination in this things required respondent all had done taxa deed.” to entitle it to statute 15 Ill2d Willis, Bank and Trust Co. v. In Southmoor the Court construed sec- 393-396, provided 266 of the Revenue which tion incontestability Act, by appeal except from of the tax deeds directing their issuance the Order promote merchant- and for its liberal construction ability, provisions of the Civil with the Section held that petition Act. under Practice The Court there Act cannot be used to of the Civil Practice Section 72 questions adjudicated put previously valid in issue means. Wright People ex rel. Doe,
In the case of pages 451 NE2d 222 the Court at stated: Company Bank
“Thus, Southmoor and Trust *7 clearly 15 Willis, Ill2d that 388, we indicated section 72 of the Practice Act available Civil to afford relief from tax deed orders when facts establishing right alleged the to such relief are proved. In the Southmoor the tax deed case, proper was upon not for attacked, lack of notice, but grounds. petition other the fact, was upon stipulation heard in which it was conceded required by upon that all notices law were served necessary parties, grantee the and that the original purchaser. tax deed holder was a bona fide Under these circumstances, we held that the coun ty properly court had saying denied relief, section 72 of the Civil Practice Act ‘cannot be again put used to questions previously in issues adjudicated (citation) valid means, and cannot be judgment used to set an aside order, or decree right, which will affect the or title interest in or any property to any person, of party not a to the original acquired action, entry for value after the judgment, the order, or decree, but before the filing petition, of such unless lack of affirmatively appears proper.’ from the record (15 395-6.)” Ill2d 388, pro
The cited above have series cases nounced Act, that section 266 of the Revenue provides pur amended in 1951 that tax deeds issued except by appeal suant thereto shall be incontestable directing from the order of By issue enactment, Clerk to such deed. legislature intended that tax titles should be sub ject only to direct attack are unless circumstances application such to as warrant par 72), Civil Practice Act Rev 1963, 110, Stats utterly or unless the for deed void. See Order Stanley v. Bank of Marion, Ill2d 417-418, Shapiro (1961); Hruby, NE2d 21 Ill2d & Cherin v. R. C. Co., (1957). 447, 454-455, 143NE2d petition only A under section is72 available appearing to correct on the face of record errors bring appearing or to in the before the Court facts not previously nor record determined if known which, judgment at the time the or decree was prevented entered, would have rendition. South its moor Bank & Willis, Trust Co. v. 393-396, (1958). 155NE2d 308 scope of the decisions first cited is considered *8 People Wright ex rel. v. Doe, 446, 449-453, Ill2d (1962). NE2d 222 Such decisions hold that a
petition containing appropriate allegations
fraud,
of
proceeding,
in connection with a tax deed
to a
is entitled
hearing
Freisinger
under
72.
Interstate
(1962);
Bond
The amended contained no allegations which established that fraud, or no Order issuance of deed void. No evidence was support plaintiffs’ allegations offered to that “defend- premises claim in tax ant’s said is based on an invalid plain- deed dated a cloud on December plaintiffs tiffs’ and that are fee of said title,” owners premises. plaintiffs filed no addition, the answer allegations or counter-affidavits the affirmative contained in motion to defendants’ verified strike and complaint. dismiss said a motion
While to dismiss all facts admits pleaded, well it not admit does conclusions law or unsupported by allegations conclusions of fact specific upon facts which such conclusions rest. Carpentier, Pierce v. App2d Joslin v. 29 Ill Ashleford, 202, 209, 172 (2d 1961). pro
NE2d 806 Dist The confesso order against herein concluded the defendants whom it was alleged properly entered, to all as matters of fact complaint, but such defendants cannot be held to any pleader have confessed of the or mat conclusions alleged. (Dillman ters law so 409 Ill Dillman, (1951).) plaintiffs’ 494, allegations, Thus, said unsupported which were conclusions of law and fact, were not admitted said motion and were not confessed said decree. Winnebago County Court of had
jurisdiction subject parties of the matter, proceedings; to said tax it had to hear petition for issuance of tax deed and to order deed to upon proof provided issue, of notice as in section 263 appeal, Revenue Act. In absence of its judgment, subject stands a valid to attack after thirty days only by petition filed under section 72 of proper Civil in Act, Practice case. light
In the of facts this case and plaintiffs’ these complaint decisions, amended failed to state a cause of action. It was a collateral attack on *9 finding
the order of the
that all notices
required by
given,
had
law
been
and that deed issue.
chancery complaint
Even if said
is treated as
sec
proceeding,
put
again
tion 72
it
to
in
the
seeks
issue
question
proper
previous
factual
of
which
notice,
ly adjudicated. Section 72
not
available
such
purpose, in
the absence
fraud.
Inc.,
Urban v. Lois,
(1963). Consequently,
542,
Ill2d
550,
prior finding
compliance
provisions
entitling petitioner
with all the
of the law
to a tax deed,
not,
could
even in
of a
absence
third
party purchaser,
disputed
proceeding.
be
in this
Southmoor Bank & Trust
Willis,
388,
Co.
Ill2d
(1958).
pleadings,
396,
Under the
de
party
purchasers
fendants herein were third
and entitled to the
bona fide
protection
afforded
section
72(5)
(Ill
of the Civil Practice Act.
Rev Stats
par 72(5));
also
see Southmoor Bank & Trust
(1958).
Co. v.
Ill2d
Willis,
396, 155
Section 9 of the New Judicial Article
art
Const
1870)
January
gave
§VI,
effective
original
jurisdiction
Circuit Court unlimited
of all
justiciable
system many
matters. Our former
courts
jurisdiction
varying original
with
was abolished. To
day, litigants
longer
vindicating
are
in
no
thwarted
rights by
technicality
having
their
started
proper
wrong
in
suit
Court.
the case at
Thus,
bar,
Circuit Court had
over the tax
question
proceeding this suit.
view of the
scope
broad
of relief available under
section
post-trial
formerly
equity,
relief
available
a court of
Freisinger
can
under
now be obtained
72.
Co.,
Interstate Bond
Judgment reversed. concur. MORAN, J., P. J. and ABRAHAMSON, Opinion Supplemental on Denial oe Rehearing Petition eor petition rehearing Plaintiffs filed a for herein ask- ing pro that the of by trial court decree confesso be County in affirmed that the order entered Court, by Judge Kullberg, J. in Fred on December 4, 1962, authorizing cause No. of tax 32,280, deed, the issuance premises question, did not describe in therein but premises. copy rather referred to other this order was attached as an exhibit to defendants’ A certified complaint. motion to strike and dismiss Such pertain in ques- did not order, fact, to the real in estate tion.
Deféndants’ verified motion to strike dismiss predicated pertaining prem- was on said order to the question. by ises No counter affidavits were filed plaintiffs denying pertinency of said order and they support offered pro no evidence in of said decree finding confesso. The decree itself no contained that pertain said prem- Court order did not to the question. ises in The record reflects no or word act plaintiffs objecting attacking the trial court, or to, said description. virtue of the erroneous plaintiffs’ petition rehearing After for was filed only raising point, filed defendants a motion to petition rehearing, strike which we denied. pursuant Defendants also filed motion, to of the Civil Practice Act Rev Stats sec 92) asking by adding leave to amend the record there- to, certified copy the order in the entered Court, by Fred J. Judge on December Kullberg, cause No. 32,280, the issuance of authorizing tax deed to the premises question. They alleged this order, due to inadvertence, was not incorpo- rated in the transcript record on al- appeal. We lowed this motion and amended the record herein, accordingly.
The certified copy order which we allowed file, defendants in all respects identical to the order attached to the motion to for the strike, except *11 form, description of the premises. It a was wherein the person it could insert the drafting descrip- tion of the pertinent It premises. evident that sev- eral orders were entered on the same before the day, same in the judge, same in the cause, varying only the description respective premises involved. Through a inadvertence, certified of a copy nonper- tinent order was attached to defendants’ motion to strike the amended complaint.
Defendants’ verified motion to amend asserts that “no issue raised in the trial court concerning any discrepancy between the in property described plaintiff’s complaint and in property described said order the issuance of a directing tax deed.” This is not denied by plaintiffs. Rather, they assert that in they raised this both their point brief and argu and that “In the ment, exercise of appellate jurisdic tion, neither nor Supreme Court the Appellate can either to permit party introduce evidence or which was not made proof part the record while the case was in the trial and court, a statutory provi former sion, of section 92 paragraph (1)(d) Civil Practice Act, purporting authorize intro duction of such evidence a court of review was held unconstitutional as an to confer attempt original juris- (Atkins Appeal diction. ILP sec Error, 202).” 393Ill Atkins, 92(1) (c), provide: (a)
Section may, appeals reviewing “(1) in its In all conrt just, as it deems and on such discretion, terms powers (a) any amend- all Exercise or . . . court; ment of trial permit (c) amended or the record to he Order by adding correcting matters which or errors included;” should have been properly permitted the defendants We believe we question. to amend the record judicial will notice of their own Courts take City records. In Louis 14 Ill of East St. v. Touchette, (1958), 247, 249, 2d judicial took in Fox exhibits; Fox, notice its (1956), Supreme judicial testimony Court took notice of of the worth of litigant prior as related in a case which it, before party question; McKinney City involved the App2d of East 39 Ill Louis, St.
(4th
1963),
Appellate
Dist
Court held that
judicial
could
Circuit Court
take
notice of its own
*12
prior judgment;
Barry,
App2d
and in
Petrando
4 Ill
(1st
1955),
Appellate
In the bar, case at the Circuit Court had proceeding question over the tax in and would take judicial notice of its own which records, included the pertinent authorizing order of the the by plaintiffs. issuance the tax deed attacked The granting of defendants’ motion amend the record, nothing amounted to more than an amendment a pleading, permissible 92(1) (a). which is under section
27 The allowance of the also falls amendment within provisions 92(1) (c) of section it an in that corrects error in the record and matters which should adds have been The however, included. added, matters were judi limited to matters which trial over court had cial notice. readily
The in the circumstances case at bar are distinguishable from those in Atkins v. 393 Atkins, by plain (1946), Ill 202, NE2d 801 which cited Supreme tiffs. In Atkins, the held it could proceedings not admit evidence in in not which it did original jurisdiction have in matter. In case permitted pleading at bar, we the amendment of a by adding record thereto matter over which the trial judicial doing, court had notice, so and, corrected per an error the record. Such not amendment did mit the defendants to offer in a evidence court re part view, which was not a of the record of the trial court.
In
or
addition,
case was not tried
de
any discrepancy
cided
the trial court on the issue of
property
between
described
plaintiffs’
Court and that
described
amended
complaint.
theory, upon
which
case is tried in
changed
appeal;
a lower
cannot be
on
court,
and an
presented
to,
issue
or considered
trial court,
not
cannot
raised for
on
be
the first time
review. Woman’s
Chicago
v. Hulman,
Athletic Club
(1964);
Isaacs,
Benson v.
22 Ill2d (1961);
NE2d
610, re Estate of Leichten
berg,
McCook
Corp.,
App2d
v. Hardwood
Co.
202
Door
52 Ill
Window
(1st
1964); People
Dist
NE2d
ex rel.
App2d
48 Ill
Bourne v. Johnson,
307, 309, 1964).
(1st
Dist
Brief,
Plaintiffs’
under “Points
Authorities”
county
appearing
states: “The
I,
VI
court order
*13
pertinent
appeal
to this matter
on
is not
record
pertain
question.”
it
not
the real estate
does
to
plaintiffs’ Argu
Point
However,
ment and it
VII is not included
only point
Au
under “Points and
is
Argument.
thorities” which is
from
There
omitted
point
headings,
no
under
is
reference to
Theory
Case”;
“Nature
“Plaintiffs’
of the Case”;
or “Statement of
there
fact,
Facts.”
is no other
point.
Appellate
reference in the Brief to this
Under
par 201.7),
Court Rule
Rev
7,
1963,
Stats
required
alleged
we are not
to review an
error which
argued.
point
argued may
A
not
made but not
be
considered waived. Green v.
Waller,
Ill2d 392, 402,
Pipitone
App2d
There a more however, reason purpose for our decision. It in the lies basic pre Civil Practice Act: removal of barriers which trial vent the of a case on its merits and the facilita procedures accomplish tion of to adopting this end. In Assembly the Civil Practice Act, General “acted response prevailing pro dissatisfaction with cedural doctrines which had exalted the role of a trial as a battle of wits and subordinated its function as ascertaining means of Krupp Chicago the truth.” Authority, Transit (1956). Ill2d 37, 41, 132 NE2d philosophy The overall of liberal construction precludes Practice Act rights the determination of litigants upon the pleading pro technicalities of rights cedure when may, such spirit within the adjudicated letter of the Act, be on their merits. Copeland, Fleshner v. 13 Ill2d 72, 77, 147 NE2d 329 (1958); People Terry ex rel. v. Fisher, 12 Ill2d 231, (1957); Hruby NE2d 588 Chicago Transit Au thority, 11 Ill2d 255, 142 People ex *14 rel. Nor en v. Dempsey, Ill Rev Stats 4. 110, par
For the adhere foregoing reasons, we opinion as originally and the adopted petition rehearing is denied. P.
ABRAHAMSON, J. and MORAN, J., concur. Chas. Ind an Illinois Co., Corporation, Plaintiff-Appel-
lant, v. Cecil Wood, Inc., B. an Illinois Corpora- tion, Defendant-Appellee.
Gen. No. 64-22.
Second District.
February 16, 1965.
Supplemental opinion, April 9,1965. denied,
Rehearing April 9,1965.