221 Ill. 127 | Ill. | 1906
delivered the opinion of the court:
Defendant in error has made a motion in this court to dismiss the writ of error on the ground that this court is without jurisdiction to determine this cause, coming, as it does, directly from the superior court.
The only issue raised by the pleadings was whether or not the certified copy of the order of affirmance, filed in the county court on April 19, 1905, was a copy of the order of this court affirming the judgment rendered at the July term, 1904, of the county court, against the lands of plaintiffs in error for the delinquent special assessment. It is admitted by the answer that the county court has rendered judgment for the special assessment against the lands, that the judgment has been affirmed by this court and that a rehearing has been denied. In other words, plaintiffs in error admit that their property is liable for the special assessment, but set up as a defense to a present sale of the property to satisfy the special assessment that a certified copy of the order of affirmance of this court has not been filed in the county court.
Plaintiffs in error, in response to the motion to dismiss the writ of error, contend that a freehold is involved and that this is a case relating to revenue.
The only effect of the judgment awarding the writ of mandamus is to compel the proper officer to enforce a judgment. It will not necessarily follow that plaintiffs in error will lose a freehold. That result may be obviated by a payment of the judgment before sale or by a redemption after sale. Under such circumstances a freehold is not involved. Adkins v. Beane, 135 Ill. 530.
Section 88 of the Practice act provides for removing “all cases relating to revenue” from the trial court to this court for review by appeal or writ of error. Where, as here, the legality of the tax or special assessment is not involved and neither the liability to pay nor the amount to be paid is in controversy, the revenue can neither be increased, diminished nor directly affected by any judgment that can be rendered in the case. The amount of the special assessment has passed into a judgment against the land, and it only remains to reduce it to possession by collection from the land owner or by sale of the land. The case relates to revenue only incidentally and remotely, and that is not sufficient to confer jurisdiction upon this court. Wells v. Rogers, 196 Ill. 292.
Plaintiffs in error insist, however, that by entering a general appearance in this court defendant in error has waived the right to ask for a dismissal of this writ of error. If the court has no jurisdiction of the subject matter a general appearance of the parties cannot confer jurisdiction upon the court to hear and determine the cause.
The writ of error will be dismissed.
Writ dismissed.
