89 Ill. 529 | Ill. | 1878
delivered the opinion of the Court:
The judgment recovered by the appellees, in 1870, against the town of Lyons, in the Superior Court of Cook county, though irregular, was not void. Process had been issued, and served upon the supervisor of the town, as required by the act of 1861, and from the date of such service the court had such jurisdiction of the defendant that its subsequent proceedings were not void, however erroneous they may have been. It is probable the judgment by default would have been reversed on error or appeal, but the mere fact the defendant was not allowed all the time given him by law to plead to the action does not so vitiate the judgment as to make it a nullity and subject to collateral attack.
In Whitwell v. Barbier, 7 Cal. 63, it is said: “ The true test is, whether the omission complained of is of the substance of the act required to be performed. If of the substance, then the judgment is a nullity; if of form, only an irregularity. In the case before us, the judgment is attacked collaterally, upon the ground that the defendant, although served with process, was not given the time allowed by statute to appear and answer. The defendant having been summoned to appear on a day certain, it can not be said that the court had no jurisdiction of the person, so as to make its judgment a nullity.” See, also, Voorhees v. The Bank, 10 Peters, 468; Smith v. Bradley, 6 Smedes & Marshall, 485; and Mooney v. Maas, 22 Iowa, 380.
It is claimed, the board of town auditors, when called upon to audit a judgment recovered against the town, act in a judicial or deliberative capacity, and that the writ of mandamus will only lie to compel the board to proceed and pass upon the question of the justice of the demand, according to their best judgment. This claim is wholly inadmissible, and involves an absurdity. It is plain, both from the statute and from the reason of the case, the board can have no discretion or power to refuse to audit a valid judgment against the town. The forty-fifth section of the Township Organization law of 1874, which is a re-enactment of a section to be found in the act of 1861, provides that whenever any controversy or cause of action shall exist between any town and an individual, proceedings may be had, either at law or in equity, for the purpose of trying and finally settling such controversy, and the judgment or decree therein shall have the like effect as in other suits or proceedings of a similar kind between individuals and corporations. By section fifty of the same act judgments recovered against a town are made a town charge, and by subsequent sections it is made the duty of the board to audit and certify such claims as are town charges, and it is expressly provided that the moneys necessary to defray the town charges of each town shall be levied on the taxable property in such town. It would, indeed, be a strange procedure for a party to a suit to pass in review upon the justice of the judgment recovered against him by the solemn adjudication of a court; and if boards of town auditors have such discretionary power, it is difficult to perceive how judgment against towns can have like effect as judgments obtained in other suits of a similar kind between individuals and corporations.
Mandamus is the proper remedy for enforcing the judgment against the town, by compelling the board of auditors to audit and certify the amount necessary to satisfy the judgment, which is declared by the law to be a town charge, so that the same may be included in the amount of moneys to be levied on the taxable property in the town, and when collected, paid to the persons to whom it has been adjudged. The People ex rel. v. City of Cairo, 50 Ill. 155; City of Olney v. Harvey, ibid. 454; Rogers v. The People ex rel. 68 id. 154; Peoria Co. v. Gordon, 82 id. 435.
The decree for a perpetual injunction, entered in April, 1870, in the chancery case prosecuted by Wentworth and other taxpayers, to restrain the collection of the town taxes of 1869, is not res adjudieata so far as the appellees are concerned, for they were not parties to that litigation. It was res inter alios aeta, and the result reached in no way affects or concludes them. Besides, that decree was entered before the suit was commenced in which the judgment under consideration was rendered, and the scope of the bill'was only to enjoin the collection of the tax levy of 1869 ; and if it could have been used at all, which we do not admit, it should have been urged in the action in which the judgment against the town was rendered. The town can not, in this collateral proceeding, go behind the judgment and question the sufficiency of the cause of action upon which it was predicated.
We deem, then, that portion of the answer setting up these injunction proceedings as wholly immaterial. The only substantial defense disclosed by the answer is, that the judgment was procured by fraud, collusion and conspiracy. The petitioners replied, that after the rendition of the judgment the town filed a bill in chancery against them to impeach the judgment for the very fraud set up in the answer; that issues were made up on such bill and the cause heard, and the bill dismissed for want of equity. The replication presented a complete bar to the proposed defense. If the court had found that the judgment was fraudulent, as charged in the bill, that was enough to set it aside in chancery and justify a perpetual injunction against its collection. It is the policy of the law to give to every one his day in court, but it is equally its policy not to encourage litigation. Where a controversy has been once decided by a court of competent jurisdiction, it can not again be brought into litigation between the same parties.
The demurrer was properly sustained to the rejoinder filed to the replication. It was incompetent to plead the reasons that induced the chancellor to dismiss the bill. The fraud alleged was involved in the cause submitted for decision, and we must presume that if it had been satisfactorily established the court would have so found and decreed. The fact that the court did decide, and the results of that decision are the matters that are material, the reasons given by the court in arriving at the conclusion reached are wholly immaterial. The averments in the rejoinder, in reference to the destruction by fire, in October, 1871, of the files and records in the cause wherein the judgment against the town was rendered, and the inability to serve a summons on Cooledge, in the proceedings instituted to restore the record, are also immaterial. The statute allowed five years for suing out a writ of error, and if the town was prevented by accident, or otherwise, from suing out such writ, it was simply a misfortune, but it did not change the law. But the town, by its own showing, was guilty of laches. There was a period of about fifteen months after judgment, and before the fire, in which the writ might have been prosecuted and the record obtained. Then the petition to restore the record was not filed until April 20, 1875, and no excuse is given for not even then getting service on Cool-edge by publication, under the provisions of the Burnt Records act. Moreover the writ might have been issued, and the case continued in this court until the record was restored and certified. If, as is urged, an unjust claim has been imposed upon the town, it has been through its own gross negligence or that of its officers and agents.
We find no error in the record, and the judgment of the circuit court must be affirmed.
Judgment affirmed.
