*1 in be taken as Edward confessed said defendant J. Kazubowski.”
An order of default does not of the merits of dispose not, case and determine the there rights parties. Miller, fore, a ex rel. final (Hess v. People There effort was no with comply Supreme Court Rule Ill.2d R. so we do not decide 304(a) (43 304) whether such can serve to make the order compliance appeal- able.
The briefs raise and discuss other questions, many which were decided The record prior appeals. pre- sents no final order reviewable at this time and appealable appeal dismissed. dismissed.
Appeal Ward took no in the consideration or decision this case.
(No. 43296. Reid, R. Collector, rel. Margaret Phillip vs. Adkins et al.— Appellee, G. and Janice Railway Company (Chicago and North Western al.,
et Appellants.)
Opinion May C.J., J., dissenting. Underwood, Ryan, *2 Rockford, Welsh, Welsh, of Hyzer, Holmstrom & of counsel,) appellants. Alexander, (Peter Belvidere, Maville, H. of for appellee. John the court: delivered the of opinion Davis North Railway Western appellants, Chicago and Illinois Central Company Railway appeal Company, this their court from the order the circuit court denying for leave file to the motions application on de collector of Boone for judgment county County real estate taxes for the The case was linquent year 1968. of revenue brought being directly R. (1). involved. 302(a) 43 in Boone their real estate taxes appellants paid the Boone 25, On September 1969, protest. Collector, Collector, caused referred to as notice to be would be made on published application 6, A.M., for cer- at 10:00 1969, judgment against October taxes, that on 13, tain listed lands for October unpaid A.M., be held of all lands at 10 sale would :oo 1969, pubic then had been en- and order which against in the were included Lands tered. owned by the sale A date changed notice. subsequent from October 1969. filed on October application were, been, filed or had appel- No objections 1969. lants, entered judgment court immediately and the trial their lands. They mailed objections, for filing, the circuit clerk on October were received 1969, which clerk on They filed because the had Thereafter, been entered. previously on Oc- tober moved for leave to file their ections, obj which motions were denied. motions Subsequent order, to vacate the October granting judgment, were likewise denied. that the appears same counsel represented
lants in to tax regard county adjoining He Winnebago. attempted, September objections Winnebago and was that the County, told clerk’s office would not accept objections for until after the application judgment had been made. The order entered in Winnebago County of the same part—a judicial circuit as Boone County- -upon application — collector for judgment, provided could be filed within a certain number of *3 The sale. notice in Boone publication did not state when filed, to the could be application and coun- sel, record, to the according believed, apparently and not without some justification, that he would be afforded a num- ber of of the for filing application judgment sale, of tax objections under the filing same pro- cedure which was followed in Winnebago County—the other judicial circuit. Section of the Revenue Act Rev. (Ill. Stat. 1969,
ch. in “The par. 675) provides, part: person paying- real estate taxes under shall protest the next appear ap for plication and order of judgment sale and the object to taxes in made, relation to which the protest his upon n do, waived, failure so to the shall be protest judgment and order of sale entered for balance any unpaid of- such taxes.” The that the appellants of urge wording this section evidences, “in the -words the next by application judg- time ment,” be a intent that there a legislative may the which party filing application after his that language cannot agree thereto. We objection legislative dictates-such a intent. Central Cain Illinois cite rel. v. appellants Cain, Co.,
R.R. of their position. support above does that the statute referred to holds only or before that must be filed on require Cain, In collector his files application judgment. the framework of held that a court within may, merely statute, certain be filed within may order number of days following of the final in section found could language argued of the Revenue Act Rev. ch. (Ill. par. Stat. intended relative to the notice of applica
706), publication sale, tion contemplates This entered on the is filed. would be date section states shall "also publication give next date of the-Monday succeeding applica an order tion all the lands and lots for sale of which * * made, sale shall be will be exposed public however, that are of the We opinion, have file their objections. ap been-permitted serves as a in such sale complaint plication and the proceedings, an failed to default wherein the tax first objections.
swer file their for sale set There no evidence that the county lands. delinquent clerk, time, the tax units of the at this had notified levying be affected might objections. tax monies However, Rev. Stat. 1969, par. (See: Ill. *4 actual notice of the in had received appellants’ reason tent in this respect by accompanying protests order which the tax had pre- payments. been the lands of pared presentation judge excepted as lands for which had been on October judgment; exception, was deleted Counsel had to file other on' behalf attempted of the in the circuit court. There he was told that not be filed until objections could There, had been filed. an order entered upon application judgment, allow- a certain number of for the ing where taxes had been paid protest. did file their
Apparently, not seek leave to objections on that the court to set had authority aside a default but pursuant provisions Act, section Civil Practice Stat. 50(5) (Ill. Rev. no, in its could par. 50(5)), section, have done it so. Under this is no longer necessary that such relief be that there precise grounds is a meritorious defense and a reasonable excuse not asserted such defense. The con having timely overriding sideration not now is whether or substantial justice being reasonable, it done between and whether litigants circumstances, under the the other compel party go Bank, trial on the National Trojan merits. Marquette v. Norville, 61 Ill. Mieszkowski v. 437, 438; App.2d Southwestern Elec Ill. 2d Widicus App. 289, 294, 295; v. Inc., tric 2d 108-111. Cooperative, App. counsel was not correct in his Although assumption the circuit in both court would be the same practice counties, an there was some such justification making notice, which is the assumption. publication the service of did not indicate when' the objec- process, fault tions must be filed. While we do find with the same nature of these at yet summary proceedings, time, that there safeguards recognize in this unwary procedure. *5 case, hard- no this particular the circumstances of
Under the have to the collector arises requiring or ship prejudice the from the cannot say merits. We matter determined ob- meritorious have a the respective appellants record sale, the since the for judgment jection However, the appel- not allowed to be filed. ob- merit their faith in the respective lants had sufficient and under protest, their taxes to be paid to cause jections on their behalf. file objections retain and counsel to prepare case, are of opinion Because of the of this posture aside to set the trial court abused in failing its discretion its order file tax objections; leave to denying appellants ob- and to file their should permitted deter- jections, and that the thereafter be ligitation on the merits. mined November 17, 1969, order entered
Accordingly, leave to to file objections, denying 20, their motion to order entered March 1970, denying reversed; vacate the entered and set entered on is vacated aside as to and the cause is remanded only; the trial court with leave to the grant directions to file their tax to determine objections, lants thereupon thereof on their merits. validity
Vacated in remanded, with directions. Mr. Chief Underwood, dissenting: sole contention is that the October order is void since “section granting judgment Act Revenue that there be a of time after requires period objectors which those during have who their previously taxes paid protest may I objections.” with the con- agree majority opinion tention merit is without and would affirm. accordingly thus
Having disposed appellants’ theory, determines its majority own and presents that the trial failing court not abused its of time to judg provide ment, Central as authorized v. Illinois rel. Cain Co., R.R. the filing but by failing permit The reason objections after of final is, ing to this determination some leading my judgment, First, what curious. finds the judgment majority to a default *6 could, discretion, trial court in its set a default judg aside ment of section pursuant provisions 50(5) Civil Practice Act (Ill. Rev. Stat. 1969, par. Section in its 50(5).) The court 50(5) provides: may “(5) order, decree, before final aside or set judgment default, and any on motion after may filed within order, thereof entry set aside final or any decree judgment terms upon any and conditions that shall be reasonable.” then majority treats motion for leave to appellants’ file as a section motion to 50(5) set aside although acknowledging appellants ap- Next, did not on this parently proceed theory. majority states that under section “it is no 50(5) necessary longer that such relief be sought on that there precise grounds ais meritorious defense and a reasonable excuse for not cited, asserted having such defense.” No timely cases are however, for the that it no position longer necessary such relief be at all. The sought theory which upon lants file leave to objections was almost certainly i.e., same on the trial presented appeal, court was re- section quired (par. 675) provide time for filing prior judgment and in ab- of such sence was void. I period, can- simply not that a trial court abuses its agree discretion when it fails relief which was not grant requested theory which not presented. if
Even had filed a motion timely to vacate of that the denial to section 50(5), the judgment pursuant abuse not, an constitute in my judgment, motion would * “* * this case. the circumstances discretion under section 50(5)], in cases under section 50(6) [now [E]ven its discre Mieszkowski, the in exercising noted in as be tion in default whether determining ascertain set must justice, aside the furtherance of exists failure present whether some reason for the meritorious defense defense time and whether some apt Laundry, Cleaners and does exist.” v. Rainbow (Gundersen Inc., reason 2d App. assumed, incorrectly time is objections in they in Boone the procedure without investigation, where County was the as same of days a certain number within may of an finds majority opinion ex there was some justification assumption concern presses ap protection unwary. however, were not unfamiliar with the pellants, practice in Boone which has been to always apparently tax or
sale. Nor appellants unsophisticated infrequent *7 Rather, filed ob objectors. objectors annual who they the time of jections prior circumstances,
at least the four these years. Under previous me it that we are seems unwarranted assuming so misled the different procedure in another deviated from they their established without effort to slightest practices if the determine Boone had been procedure changed. on
Finally, 25, 1969, statutorily September required Rev. Stat. (Ill. par. 706) pub lished would be made 1969,,. lands, and sale certain listed and that against on October of all sale held 13, 1969, public would be lands en- which the order had been Thus, tered. if even in assuming were justified of time for would be allowed Boone as well as County, it was clear that must such perfectly filed sale on October ob- public 13. jections were not mailed until were not re- ceived circuit clerk until October While 15. of the sale was changed by notice to October subsequent motion leave to file appellant’s was not filed until October 1969. was,
The absence of on the diligence believe, I and should not be ex- inadequately explained, cused in the name of substantial justice. Ryan in this joins dissent.
(No. 43298. vs. Appellee, Illinois, State Jones, Appellant.
Joe Opinion May